In a recent Michigan case involving allegations of sexual abuse against visually impaired minors in public schools, the admissibility of expert psychiatric testimony became a focal point. Specifically, the Court grappled with challenges to Dr. Gerald Shiener‘s expertise and methodology.
Plaintiffs presented Shiener, a psychiatrist, to testify on the “causation and damages” related to the children’s psychiatric issues stemming from the alleged abuse. However, Defendants argued that Shiener lacked sufficient expertise in child psychiatry, given the plaintiffs’ ages at the time of the incidents and evaluations. Consequently, they sought to exclude his testimony.
Psychiatry Expert Witness
Dr. Gerald A. Shiener is a board-certified psychiatrist with over four decades of clinical experience, specializing in forensic psychiatry, addiction psychiatry, geriatric psychiatry, and psychosomatic medicine.
Shiener earned his Doctor of Medicine degree from Michigan State University College of Human Medicine. He completed his residency in psychiatry at Sinai Hospital of Detroit. His training included inpatient psychiatry, emergency psychiatry, adolescent psychiatry, and consultation-liaison psychiatry. He also completed an honorary clinical assistantship at London Hospital Medical College under Professor Desmond Pond.
Firstly, Plaintiffs countered that Shiener’s extensive experience, including his role as Chief of Psychiatry at a trauma center where he treated sexually abused children, his residency training in child psychiatry, and his appointment to a juvenile mental health advisory committee, qualified him to opine on the matter. Conversely, Defendants dismissed this experience, arguing that his residency training was decades old and his overall practice lacked a focus on forensic child psychiatry. In essence, the Defendants primarily argued that Shiener lacked the specific expertise required to testify on the psychiatric impact on child victims of sexual abuse. They contended that his experience in child psychiatry was limited, particularly in forensic settings, and that his relevant training was outdated. Thus, they challenged his credentials, asserting that he was not a sufficiently qualified “child psychiatrist.”
Nevertheless, the Court ruled that it was not necessary for Shiener to have spent the majority of his time focused on child psychiatry in order to offer relevant opinions. Indeed, Shiener has received formal training in the psychiatric treatment of minors, and in addition, he has experience treating this population, including with respect to sexual abuse. Therefore, the initial objection based on a lack of child psychiatry expertise was largely dismissed.
Methodology:
Furthermore, Defendants raised concerns about Shiener’s methodology. They alleged he: failed to adequately review medical and school records, over-relied on maternal reports, used outdated assessment approaches, specifically the multi-axial assessment approach that was eliminated from the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders, failed to rule out alternative causes, provided speculative opinions lacking data, and failed to cite reliable scientific literature.
Conversely, the Plaintiffs defended Shiener’s methodology, arguing that he had utilized a variety of sources, including depositions, police reports, and his own evaluations. They also argued that reliance on the DSM-IV was acceptable, as it closely approximated the DSM-V in relevant areas, and that his clinical experience allowed him to make his professional judgements. Additionally, they provided an affidavit from Shiener, that backed up his methods, and reasoning.
Reliability:
More importantly, the Court addressed the reliability of Shiener’s methods. Specifically, Defendants criticized his reliance on the DSM-IV, which has been superseded by the DSM-V. However, the Court found that while the DSM-V is the current version, the DSM-IV was sufficient for diagnosis of PTSD in this case, because there is significant overlap between the two versions. Thus, the diagnosis of PTSD was admissible. Furthermore, the Plaintiffs argued that Shiener’s experience, allowed him to form his opinions, and that the DSM-IV was sufficient for the diagnosis of PTSD.
Multi-Axial Assessment:
However, the Court prohibited Shiener from using the DSM-IV’s multi-axial assessment approach, which was phased out in the DSM-V. Because the Plaintiffs failed to demonstrate the reliability of this outdated system, the Court deemed it inadmissible.
Causation and Prognosis:
Defendants also objected to Shiener’s opinion that Plaintiffs’ psychiatric diagnoses arose from sexual abuse, arguing that his opinions on this issue did not address any “other external circumstances,” in addition to being conclusory and unsupported.
The Court excluded Shiener’s opinions on causation, prognosis, and treatment. Namely, his statements regarding the cause of the Plaintiffs’ conditions were deemed conclusory and lacked adequate explanation. Similarly, his opinions on prognosis and treatment lacked sufficient support from scientific literature. Consequently, these aspects of his testimony were deemed inadmissible.
While acknowledging some oversights, the Court noted that Shiener did utilize various sources, including depositions, police reports, educational records, and his own evaluations. Additionally, the Court recognized that experts conducting their own evaluations aren’t always required to review all medical records.
Held
In conclusion, the Court granted in part and denied in part the Defendants’ motion to strike Dr. Gerald Shiener’s testimony. His diagnoses, particularly of PTSD, were deemed admissible, while his multi-axial assessments, causation opinions, prognosis, and treatment recommendations were excluded.
Key Takeaways:
Even with broad psychiatric qualifications, specific expertise relevant to the case (e.g., child psychiatry in cases involving child victims) can be challenged.
Outdated methodologies (like the DSM-IV’s multi-axial assessment, a feature of the DSM-IV that was phased out in the DSM-V) can be grounds for excluding expert testimony.
Sabelita Hawkins experienced a psychotic episode in 2011, leading to hospitalization and subsequent treatment at the Puget Sound Veterans Hospital. She alleges that despite informing Dr. Daniel Doan that her prescribed medication was ineffective, no changes were made to her treatment. Later, Dr. Carl Jensen diagnosed her with PTSD but also did not modify her care. A second psychotic episode resulted in Hawkins attacking her mother and facing arrest.
The Government retained Russell Vandenbelt, M.D., a licensed psychiatrist, and Michael Kovar, M.D., a licensed family medicine physician, as experts to opine on Doan’s and Jensen’s treatment of Hawkins. Hawkins sought to exclude both Vandenbelt’s and Kovar’s testimony on the basis that their opinions are neither reliable nor relevant to Hawkins’ allegations.
Psychiatry Expert Witness
Russell Vandenbelt specializes in behavioral medicine, and has over three decades of clinical experience as a licensed psychiatrist. He is also a “certified specialist” in addiction medicine, serves as a psychiatric consultant to medical, nursing, and pharmacy boards in Washington, and previously worked as a staff physician “managing patient withdrawal syndromes from opiates, alcohol, stimulants, and sedative-hypnotics.”
Michael Kovar is a family medicine physician with clinical interests in behavioral medicine. He has served as a board-certified family medicine physician and an assistant clinical professor at the University of Washington School of Medicine.
The Government retained Vandenbelt to conduct a “review of records regarding the adequacy of mental health treatment provided to Hawkins” and to “opine on the standard of care for Hawkins’ psychiatrist, Carl Jensen.”
Hawkins contended that Vandenbelt’s report (1) did not reflect his experience and knowledge (2) did not sufficiently explain his methodology; and (3) was not supported by “sufficient facts and data” or “medical analysis.”
Reliability of Standard of Care Testimony
Vandenbelt’s testimony reflects his specialized experience in “diagnosing, assessing, and treating” patients “with medication and psychotherapy.”
The Court rejected the argument that he lacked the knowledge to discuss medication effects and interactions, given his experience in addiction medicine.
In conclusion, the Court found Vandenbelt’s testimony on the standard of care to be reliable.
Methodology
The Court determined that Vandenbelt’s report sufficiently explained his methodology because he reviewed Doan’s and Jensen’s treatment decisions, applied his understanding of standard of care principles to the facts in the records, and used this information collectively to form his opinion that “Doan and Jensen provided adequate and appropriate treatment” of Hawkins’ symptoms based on the information they had at the time of treatment.
In deciding whether to exclude Vandenbelt’s testimony before trial, the Court “is not tasked with deciding whether he is right or wrong” and may “not exclude his opinions merely because they are impeachable.”
Daubert requires only that Vandenbelt’s testimony has “a reliable basis in the knowledge and experience of his discipline.” A psychiatry expert may testify about the adequacy of treatment a patient received based on a review of that patient’s past medical records.
Relevance
Hawkins also sought to exclude Vandenbelt’s testimony on relevance grounds, asserting that his testimony has “no clear connection” to her medical malpractice allegations.
In this case, the Defendants’ adherence to the standard of care is a necessary element of Hawkins’s medical malpractice claim, and therefore has a “valid connection” to this case.
The Court found Vandenbelt’s testimony on the standard of care relevant, as it directly addressed a key element of Hawkins’ malpractice claim.
Causation
Vandenbelt’s report opines on whether Doan and Jensen “acted inappropriately or below the standard of care” in treating Hawkins. However, Vandenbelt did not provide any opinion on causation.
To the extent that the Government sought to call Vandenbelt to testify about the cause of Hawkins’ second psychotic episode, however, the Court excluded that causation testimony. The Court reinforced that an expert cannot testify to matters outside their report.
Michael Kovar
The Government intended to introduce Kovar’s testimony that Doan “met the standard of care” in treating Hawkins and that Doan’s “actions neither caused nor could have prevented” Hawkins’ subsequent attack on her mother.
Hawkins sought to exclude Kovar’s testimony for the same reasons she sought to exclude Vandenbelt’s testimony.
Qualifications
The government countered that Kovar has over 28 years of clinical experience as a family medicine practitioner. Kovar’s report reflects his specialized experience serving as a board-certified family medicine physician, an assistant clinical professor at the University of Washington School of Medicine, and his clinical interests in behavioral medicine.
The Court agreed, noting that Kovar’s experience allowed him to analyze whether Doan’s treatment met the standard of care for a family medicine physician.
Hawkins argued that Kovar lacked the expertise to discuss the effects of oxycodone, alcohol, and antibiotics on her mental state. But as a family medicine physician with clinical interests in behavioral medicine, Kovar has knowledge and experience treating adults with medications. Kovar is therefore qualified to testify about medication effects and interactions.
Methodology
Hawkins also argued that Kovar’s report “did not contain an explanation of the methodology” he used to develop his opinion and “provided [only] a blanket opinion without further medical analysis.”
Kovar’s report explained, however, that he reviewed Hawkins’ complaint and the “pertinent medical records available to Doan at the time of Hawkins’ ” treatment with Doan. Kovar then reviewed Doan’s treatment decisions, applied his understanding of standard of care principles to the facts in the records.
The Court determined that Kovar’s “specialized knowledge and experience can serve as the requisite ‘facts or data’ on which he renders an opinion.” While Hawkins disagrees with Kovar’s conclusions, asserting that they are based on “misstated facts,” the Court may “not exclude Kovar’s opinions merely because they are impeachable.”
Relevance
Hawkins also argued that Kovar’s testimony has “no clear connection” to her medical malpractice allegations. The Court disagreed, stating that Kovar’s opinions on the standard of care and causation were directly relevant to the necessary elements of Hawkins’ claim.
Doan’s adherence to the standard of care and the causal link between his alleged negligence and Hawkins’ injuries are necessary elements of Hawkins’ medical malpractice claim.
Hawkins may test the expert witness’ credibility by cross-examining them about their methodology, sources, and conclusions at trial.
Held
The Court denied Hawkins’ motions to exclude Russell Vandenbelt and Michael Kovar.
Key Takeaway:
Hawkins V. United States highlights the critical role of expert testimony in medical malpractice cases and the court’s rigorous application of Daubert standards. The court’s decision underscores the importance of qualified experts, reliable methodologies, and relevant testimony. This case provides valuable insights for legal professionals and anyone interested in the intersection of law and medicine.
Kirsten W. sought payment of benefits for her son C.W.’s treatment at Open Sky Wilderness Therapy (“Open Sky”) and Telos Residential Treatment Center (“Telos”) from Defendants California Physicians’ Service d/b/a Blue Shield of California (“BSC”). C.W. was admitted to Open Sky and Telos for treatment of his depression, anxiety, drug and alcohol use disorders, poor impulse control, and other self-destructive behaviors.
To evaluate coverage of Residential Treatment Center (“RTC”) level of treatment for children and adolescents, BSC has relied on various different criteria that were in effect during different periods. Of particular relevance, BSC utilized the 2018 MCG 21st Edition Residential Acute Behavioral Health Level of Care Guidelines (“MCG Guidelines”) and Version 20 of The Child and Adolescent Level of Care Utilization System Guidelines (“CALOCUS”).
Defendants denied Kirsten’s claims for coverage, relying on statements such as “there was never a significant risk that you would harm yourself or others,” and “there is no active suicidal ideation with intent or plan, homicidal ideation, or overt psychosis” to support the decision to deny benefits.
Plaintiff additionally claimed that Defendants violated the Mental Health Parity and Addiction Equity Act of 2008 (the “Parity Act” or “MHPAEA”) by applying acute requirements to subacute mental health treatment.
BSC disclosed Caitlin R. Costello as an expert for the purpose of providing opinions “regarding the clinical sufficiency of certain guidelines that [BSC] consulted when evaluating the medical necessity of the services allegedly provided to [C.W.].”
Given that Defendants relied on Costello in disputing Plaintiff’s purported MHPAEA violations, the Court first considers whether her report and opinions are admissible under Federal Rule of Evidence 702.
Psychiatry Expert Witness
Caitlin Costello is an associate clinical professor in the Division of Child and Adolescent Psychiatry, Department of Psychiatry, at the University of California, San Francisco. She also serves as the chief of child forensic psychiatry in the Psychiatry and Law Program at the University of California, San Francisco. Additionally, she is the medical director for child and adolescent ambulatory psychiatry at UCSF-West Bay. Costello is also the Training Director of the Child and Adolescent Psychiatry Training Program at the University of California, San Francisco.
She is licensed to practice medicine in the state of California and is certified by the American Board of Psychiatry and Neurology in General Psychiatry, Child and Adolescent Psychiatry, and Forensic Psychiatry.
In her expert report, Costello takes no position on whether the disputed services were “medically necessary.” Instead, she opined that utilization of the MCG Guidelines was “clinically appropriate for Blue Shield to consider” in its medical necessity evaluation.
Costello further opined that the MCG Guidelines did not focus solely, primarily, or improperly on acute symptomology, and that BSC’s reliance on the guidelines did not show any clinically improper focus on acute symptomology.
First, Plaintiff argued that Costello’s report did not compare analogous guidelines (such as those of skilled nursing facilities with the MCG Guidelines) and was thus unhelpful to the Court’s analysis. Second, Plaintiff argued that Costello’s report was unreliable because it ignored the language of the Plan and the relevant MCG Guidelines.
Costello’s Report did not Compare Analogous Guidelines
Plaintiff’s parity act claim is entirely based on her reading of the terms of the MCG Guidelines as requiring acute symptoms in contrast with treatment in a skilled nursing facility, which requires there be “no acute hospital care needs.”
Demonstration that the MCG Guidelines did not require “acute” symptoms was sufficient to defeat Plaintiff’s Parity Act argument. The Court held that Costello’s report is directly relevant to this point.
Costello’s Report was Unreliable because it Ignored the Language of the Plan and the Relevant MCG Guidelines
Plaintiff essentially argued that Costello’s opinion is incorrect as to whether the MCG Guidelines improperly focus on acute symptomology, based on an alleged lack of “citation to any evidence” and in light of a footnote that mentions “acute” symptoms.
First, the Court held that Costello did cite to the record—specifically the language of the applicable guidelines she opines on. Any interpretations of these guidelines, particularly as to whether they employ acute symptomology criteria, fell under her training and experience.
And it was not unreasonable for Costello to not specifically describe every footnote in her report that she did not believe would change her analysis, particularly when Plaintiff did not mention this footnote previously. A threshold showing of reliability did not mean the “expert’s testimony is ‘undisputably correct’ or without uncertainty.”
Plaintiff also argues that discussion of this footnote in Costello’s supplemental declaration attached to Defendants’ Opposition to Plaintiff’s motion for summary judgment amounts to “untimely” expert testimony because the text of the footnote was available upon review of the MCG Guidelines.
The meaning attributed to the footnote falls within “the contested issue of whether Blue Shield improperly applied guidelines that were too restrictive or otherwise inappropriate,” which Defendants disclosed Costello would testify regarding in their expert disclosures.
There was no indication prior to the summary judgment briefing that Plaintiff intended to argue that this single footnote altered the reasonable interpretation of the MCG Guidelines. Plaintiff also chose not to submit an expert report, a rebuttal expert report, or depose Costello.
Therefore, Costello’s declaration was appropriate to rebut Plaintiff’s new argument. Accordingly, the Court finds Costello’s report and opinions sufficiently reliable for the Court to consider regarding the language and meaning of the MCG Guidelines.
Held
The Court denied the Plaintiff’s motion to exclude the opinions of Dr. Caitlin Costello.
Key Takeaway:
A threshold showing of reliability does not mean the “expert’s testimony is ‘undisputably correct’ or without uncertainty.
Costello’s opinion is not incorrect in light of a footnote that mentions “acute” symptoms because it was reasonable for Costello to not specifically describe every footnote in her report that she did not believe would change her analysis, particularly when Plaintiff did not mention this footnote previously. Moreover, Costello does cite to the record—specifically the language of the applicable guidelines she opines on. Any interpretations of these guidelines, particularly as to whether they employ acute symptomology criteria, falls under her training and experience.
This case arises from the in-custody death of Joseph Morton (“Morton”) at Vista Detention Facility (“VDF”). Morton was arrested for attempted robbery and booked at VDF on May 11, 2020, one day after release from a 5150 hold. Morton committed suicide six days later, on May 17. Plaintiffs allege medical care claims under 42 U.S.C. § 1983 and state law theories claiming that Morton should have been designated as “high risk” for suicide and placed in a safety cell in Inmate Safety Program (ISP) housing.
Defendants County of San Diego, Hosanna Alto, and Janine Sparks (“County Defendants”) claimed that they did not violate Morton’s civil rights. Mental health clinicians (MHC) Hosanna Alto and Janine Sparks were accused of being deliberately indifferent to Morton’s suicide risk.
Jeffrey Metzner is a licensed medical doctor who has been engaged in clinical and forensic psychology since 1978. From 1980 to 1981, Metzner served as Chief of Psychiatry at Colorado State Penitentiary and he served as a consulting psychiatrist to the National Prison Project and the United States Department of Justice for 30 to 40 years, respectively. He has published numerous newsletters, books, book chapters, and peer reviewed journal articles, including on the topics of mental health and psychiatry in prisons. Between 1989 and 2022, he served as an expert in 178 cases.
Kaycea Campbell is an economist with a Ph.D. from Claremont Graduate University, a Master of Arts in Economics from the University of Southern California, and a Bachelor of Science in Economics from the University of the West Indies. Campbell is a tenured economics professor at Pierce College and is also the Department Chair for a multidisciplinary Political Science, Economics, Administration of Justice, and Chicano Studies unit. She has worked as a professional economic researcher for about twenty (20) years during which time she has published articles on economic analyses associated with loss of income and calculated and researched issues such as the recovery of damages for lost profits, wrongful death, personal injury, and intellectual property damages. She has served as an economics expert in thirteen (13) cases since 2014.
1. Mental Health Clinician Standard of Care Opinions
Metzner opined that the care provided to Morton by various mental health and medical professionals at VDF fell below the standard of care. According to County Defendants, although Metzner is a licensed psychiatrist, he has no experience in supervising MHCs in a correctional setting and has not received formal training in the MHC standard of care.
The Court is not persuaded by this argument. Metzner has some thirty (30) years of experience in correctional psychiatry as well as extensive academic and research experience in correctional psychiatry and mental healthcare. Further, it is noteworthy that Metzner has served as a court-appointed expert in numerous cases.
2. Opinions re MHC Alto
County Defendants challenged Metzner’s specific opinions that MHC Alto: (1) did not obtain records regarding Morton’s recent hospitalization; (2) made the improper assumption that because he was released from the 5150 hold, there was no significant safety risk; and (3) that if MHC Alto had obtained the records from Morton’s recent hospitalization, “they would have figured out he was still suicidal.”
a. Records from Prior Hospitalization
Metzner opined that “[i]t was below the standard of correctional mental healthcare to not, at least, attempt to obtain information regarding Morton from the Alvarado Parkway Institute/BHS as part of the gateway assessment process” because “obtaining such information would have demonstrated that Morton was not a reliable historian and that he omitted significant factors leading to his very serious suicide attempt.”
The Court is satisfied that Metzner possesses the necessary qualifications and relevant experience to testify that the standard of care for QMHPs performing an ISP assessment would include requesting prior suicide-related hospitalization records.
b. Improper Assumption
County Defendants challenged Metzner’s opinion that MHC Alto’s assessment fell below the standard of care because she improperly assumed that following his 5150 hold release, he posed no significant safety risk.
According to County Defendants, MHC Alto did not rely on any assumptions in completing the ISP assessment, as confirmed by her deposition testimony.
The Court noted that there appears to be no opinion offered by Metzner about any assumptions MHC Alto made during her ISP assessment.
It was held that Metzner’s opinion in this respect is, by his own admission, only relevant if MHC Alto made an assumption regarding the 5150 hold release during her ISP assessment of Morton. As such, to the extent Plaintiffs put forth evidence that MHC Alto made such an assumption during the ISP assessment, Metzner may testify that, in his expert opinion, relying on such an assumption contributed to the reasons her care fell below the acceptable standard. But if Plaintiffs fail to offer evidence that MHC Alto relied on this assumption, or any assumption regarding Morton’s release from the 5150 hold, during her ISP assessment, Metzner cannot, and seemingly does not, offer an opinion in this respect.
c. Causation
County Defendants also take issue with Metzner’s opinion “that if Alto had obtained Morton’s Alvarado Parkway Institute (“API”) Records, it would have made a difference for Morton here because, according to Metzner, Morton’s medical history as provided by him to VDF medical staff was not consistent with information in the API records.”
The Court held that Plaintiffs can put forth evidence of the 5150 hold records and Metzner can opine that MHC Alto’s care was substandard for her failure to obtain these records. But ultimately, it is up to the jury to determine the import of these records and opinion testimony—for example, whether MHC Alto would have or should have done anything different, including whether she would have concluded Morton was suicidal, had she obtained and reviewed these records.
3. Opinions re MHC Sparks
County Defendants challenged Metzner’s opinion regarding MHC Sparks’ failure to complete Morton’s 24-hour ISP follow-up assessment. The Court held that Metzner’s opinion as to the reasoning behind why MHC Sparks did not perform the follow-up assessment appears to be based wholly on speculation and not any reliable methodology or specialized experience.
County Defendants also challenged two opinions Metzner offered during his deposition as beyond the scope of his report. First, Metzner opined that the nature of Morton’s phone conversations with girlfriend and mother were much more suicidal related to the conditions to confinement. He felt that a 24-hour assessment was necessary.
The Court agreed that this opinion appears to be beyond the scope of Metzner’s expert report. However, the Court is not persuaded that it should be excluded on this basis alone. In this case, County Defendants do not explain how they have been prejudiced by Metzer’s failure to include this opinion in his written report. In any event, the record is clear that his failure to do so was harmless because County Defendants had sufficient time and ability to question Metzner on this opinion when he raised it during his deposition.
County Defendants also challenged an opinion Metzner made on page 67 of his deposition. The record is devoid of page 67 of Metzner’s deposition transcript. Without the benefit of the evidence County Defendants seek to exclude, the Court cannot determine whether it is subject to exclusion.
4. Policies & Training
County Defendants asked the Court to exclude Metzner’s opinions on the sufficiency of the County’s suicide prevention policies and training.
Metzner further opined during his deposition that the the ISP “assessments were not very standardized and really varied depending on who the clinician was doing it.”
It should be noted that Metzner has ample experience in correctional mental healthcare including suicide prevention programs, policies, and training in the correctional setting. And here, Metzner identifies the policies he reviewed prior to coming to this conclusion.Thus, he adequately explains the basis for his opinion, and the Court is satisfied that his opinion is sufficiently reliable.
5. Opinions re Nurse Macanlalay
According to Metzner, “[t]he decision by Samantha Macanlalay RN on 5/11/2020 that a release of information for outside healthcare records was not indicated was problematic in the context of a very recent psychiatric hospitalization following a serious suicide attempt. Obtaining such information would have assisted in the suicide risk assessment process.”
County Defendants sought to exclude Metzner’s opinions about Nurse Macanlalay as irrelevant because she has since been dismissed from this lawsuit.
The Court agreed with County Defendants that Metzner’s opinion that Nurse Macanlalay’s assessment was “problematic” is not probative of any fact or issue in this case.
6. Summary of Records
Finally, County Defendants challenged Metzner’s summary of the record in his report. According to County Defendants, this evidence is impermissible because his summary paraphrases the evidence and is incomplete.
To the extent Metzner’s report includes an unadorned regurgitation of the facts, evidence, and/or record in this case, the Court held that his opinion and testimony is impermissible.
County Defendants also specifically challenged Metzner’s summary of the Citizens’ Law Enforcement Review Board (“CLERB”) report, State Auditor’s report, Critical Incident Review Board (“CIRB”) reports, and Disability Rights California (“DRC”) report.
As to the CLERB report summary, the Court agreed that Metzner’s evidence is subject to exclusion. Metzner quoted a portion of the report and comments that a statement contained therein is inaccurate based upon evidence elsewhere in the record. This opinion does not appear to be based on any expertise or particular experience, and a factfinder does not need any specialized knowledge to review two documents and determine whether they are inconsistent.
A review of Metzner’s summary of the State Auditor’s report, reveals no opinions or other commentary— Metzner simply summarizes the report and its findings. The Court held that it is impermissible.
Turning to the CIRB reports, Metzner indicated that he reviewed reports from January 2015 to August 2019 and opines on the adequacy of these reports and that there are “common themes” between the prior incidents and the issues he identifies as connected to Morton’s suicide. The Court is satisfied that, if relevant, this opinion is reliable and based on Metzner’s experience and qualifications.
Finally, as with his summary of the State Auditor’s report, Metzner merely restates part of the DRC report. The Court held that this evidence is subject to exclusion as unreliable and improper.
Motion to Exclude Campbell’s Opinions
To suggest that Morton’s estate is not a party to this litigation is inaccurate
Campell offers her opinion on Plaintiffs’ economic damages based upon Morton’s income projections, personal consumption, and household services as well as other costs attributed to his wrongful death.
First, County Defendants asserted that Campbell’s report estimates the value of Morton’s hypothetical future estate as the value of wrongful death damages, but that “Morton’s estate, should one exist, is not a Plaintiff in this litigation.”
To suggest that Morton’s estate is not a party to this litigation is inaccurate. The Court held that County Defendants appear to misapprehend the distinction between wrongful death claims and survival claims and their related damages. Damages for a wrongful death claim are personal to those who survive the decedent whereas damages for claims that survive death are personal to the decedent. For wrongful death claims, i.e., where heirs or survivors can recover their own damages based upon the death of their loved one, a Plaintiff may recover both economic and noneconomic damages.
A review of Campbell’s report reveals that her opinions fall squarely within the realm of permissible wrongful death damages evidence and that she does not improperly include damages particular to Plaintiffs as individuals. And because Plaintiffs press a wrongful death claim, this evidence is relevant assuming they can prove liability.
Campbell calculated Morton’s earning potential based upon various factors and variables
County Defendants asserted that Campbell’s opinions are unreliable. The Court disagreed. Campbell calculated Morton’s earning potential based upon various factors and variables.
She also considered his past history of work. And she sufficiently explained and supported the basis for her calculations. Her ultimate conclusion is that, based upon these variables, Plaintiffs’ damages range from $495,702.17 to $1,082,185.53 if Morton was single with no children, which he was at the time of his death. The Court is satisfied that Campbell’s opinion is based upon a reliable methodology and that County Defendants challenges goes to the weight of Campbell’s evidence, which they can attack on cross-examination.
Held
The Court granted in part County Defendants’ motion to exclude the expert opinions and testimony of Dr. Jeffrey Metzner.
The Court denied County Defendants’ motion to exclude the expert opinions and testimony of Dr. Kaycea Campbell.
Key Takeaway:
Metzner has ample experience in correctional mental healthcare including suicide prevention programs, policies, and training in the correctional setting but his opinion regarding MHC Sparks’ failure to complete Morton’s 24-hour ISP follow-up assessment appears to be based wholly on speculation and not any reliable methodology or specialized experience.
Also, Campbell arrived at Morton’s earning potential based upon various factors and variables after considering his past history of work. And she sufficiently explains and supports the basis for her calculations.
Plaintiff Rebecca Leeper filed a Complaint for Damages against the Defendants, the City of Tacoma and Tel Thompson. The case arose from injuries she sustained in a sexual assault on July 17, 2018. In her Complaint, Leeper alleged that the City had prior knowledge of Thompson’s dangerous conduct, including a documented history of confrontational behavior and inappropriate sexualized conduct while working in his Tacoma Police Department uniform. Despite this knowledge, the City allegedly failed to implement reasonable protective or supervisory measures, leading to Leeper’s assault by Thompson. As a result, she claimed to suffer from emotional distress, including depression, anxiety, shame, fear, anger, sadness, embarrassment, and physical health problems such as hypervigilance and irritability.
Leeper moved to strike two rebuttal expert witnesses designated by the City of Tacoma, Ryan Spurling and Dr. Douglas Robinson. She argued that these witnesses were not offering rebuttal opinions and should have been disclosed earlier. Tacoma responds that no rule requires it to designate a primary expert to address the opponent’s expert expected opinions and evidence, but rather the defense is permitted to wait until after Plaintiff’s expert disclosures to disclose experts to rebut the same subjects.
Law Enforcement Expert Witness
Ryan Spurling‘s career in law enforcement has spanned more than 32 years. He has served in the law enforcement community with the Washington State Patrol (WSP), the Mason County Sheriff’s Office (MCSO), and as an expert witness for Use of Force (UOF) and Police practices.
Douglas Perry Robinson is a psychiatrist in Seattle, WA and has over 47 years of experience in the medical field. He graduated from University of Utah in 1976.
The Court found that both Spurling and Robinson met the requirements of Rule 26 as experts “intended solely to contradict or rebut evidence on the same subject matter identified by another party.”
Furthermore, and in any event, Leeper waited almost four years after the cutoff date for motions related to discovery and more than a year after remand and just weeks before trial to move to strike as untimely experts Tacoma disclosed in 2021. Any prejudice from the allegedly late disclosure could have been ameliorated if she had raised the issue much sooner.
Held
The Court denied the Plaintiffs’ motion to strike Tacoma’s expert witnesses, Ryan Spurling and Dr. Douglas Robinson.
Key Takeaways:
The party with the burden of proof on an issue should disclose its expert testimony before the other party is required to disclose an expert to rebut that opinion testimony. Furthermore, and in any event, Leeper waited almost four years after the cutoff date for motions related to discovery and more than a year after remand and just weeks before trial to move to strike as untimely experts Tacoma disclosed in 2021.
Case Details:
Case Caption:
Leeper V. City Of Tacoma Et Al
Docket Number:
3:20cv5467
Court:
United States District Court for the Western District of Washington
Sarah Budd alleged that SkyWest (Defendant) discriminated against Budd by subjecting her to a sexually hostile work environment during her employment at SkyWest’s Dallas-Fort Worth International Airport facility and retaliating against her for reporting the harassment. Budd claimed that SkyWest placed her on indefinite administrative leave as retaliation.
In response, the Equal Employment Opportunity Commission (“EEOC”) filed a motion to exclude Dr. Steven H. Berger‘s anticipated opinion testimony, which challenged the Plaintiffs’ expert Dr. Kristin W. Samuelson‘s diagnoses and the results of her assessment of Budd using the Minnesota Multiphasic Personality Inventory—Third Edition (MMPI-3).
Psychiatry Expert Witness
Steven H. Berger is a graduate of the University of Michigan Medical School (1972). He has been licensed as a physician in Nevada since 2004, in California since 1999, and in 6 other states. He is board certified in General Psychiatry (1978) and Forensic Psychiatry (1985, 1998, 2005, 2013, 2019). He is a Clinical Professor of Psychiatry, University of Nevada, Reno, School of Medicine. He is a member of the American Psychiatric Association (1975) and has been a Distinguished Life Fellow since 2009. He is a member of the American Medical Association (1974) and the American Academy of Psychiatry and the Law (1985). He served as the Chairman of the Ethics Committee of the Michigan Psychiatric Society (1989-1994) and the Indiana Psychiatric Society (2001-2017).
A. Berger has received no specialized training on PTSD
Berger opined that Samuelson’s diagnosis of Budd suffering from Post-Traumatic Stress Disorder (PTSD) was incorrect. The EEOC contended that this opinion should be excluded, arguing that Berger was unqualified to render it and that it was irrelevant and unreliable. The Court held that Berger’s opinion and related testimony were inadmissible. He lacked the qualifications to critique Samuelson’s performance of the psychological assessments that support her diagnosis because he has never performed them himself, he is not qualified to read or interpret their resulting data, he has received no specialized training on PTSD, and he has never written on the topic.
The Court also deemed Berger’s opinion unreliable. His purported “common-sense” approach to interpreting the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, did not meet the reliability standards required by Rule 702.
Furthermore, Berger claimed that the MMPI-3 assessment that Samuelson administered to Budd indicated that she over-reported some symptoms. The EEOC argued that this opinion did not occur to Berger, but to his colleague, Dr. Sarah Hall, to whom he provided Samuelson’s data. While SkyWest claimed Berger offered an independent analysis of Hall’s findings on the MMPI-3, the Court, once again, found this opinion inadmissible. It was unreliable, and rests on Berger’s common sense and life experience rather than an independent analysis of Hall’s findings. Moreover, the Court decided that Berger—who had never administered the MMPI-3 and was unable to read its test data—is unqualified both to opine on Budd’s MMPI-3 assessment and to independently analyze Hall’s MMPI-3 findings.
B. Berger draws impermissible legal conclusions
Berger stated that Budd failed to mitigate her symptoms and that her litigation stress was not compensable. The EEOC contended that Berger made impermissible conclusions of fact and law, while SkyWest argued that his testimony would help the jury understand the evidence. The Court determined these opinions were inadmissible as well. Berger was unqualified to offer legal conclusions, and his reliance on common sense and life experience rendered his opinions unreliable.
Held
The Court granted the EEOC’s motion to exclude Defendant’s expert witness, Steven H. Berger.
Key Takeaway:
Berger has received no specialized training on PTSD, and he has never written on the topic. Certain opinions offered by Berger rest on what he acknowledges are his common sense and life experience, and Hall’s findings, which he did not independently analyze. The Court did not admit his testimony.
Case Details:
Case Caption:
Equal Employment Opportunity Commission V. Skywest Airlines Inc
Docket Number:
3:22cv1807
Court:
United States District Court for the Northern District of Texas, Dallas Division
Domski filed this lawsuit on August 11, 2023, alleging that she was wrongfully terminated from her employment by defendant Blue Cross Blue Shield of Michigan after she refused to comply with the company’s COVID-19 vaccination policy. Domski worked for Blue Cross Blue Shield from March 10, 2008 until her termination on January 5, 2022, most recently as an IT Process Specialist II.
She submitted a written religious exemption request, which generally cited a belief that taking the vaccine would be immoral because “[t]he three COVID vaccines were ether developed or tested using fetal cells that originated in abortion.”
The Defendant interviewed Domski regarding her religious beliefs but denied her request for an accommodation shortly thereafter, stating that “she did not meet the criteria for an exemption due to a sincerely held religious belief, practice, or observance.”
On July 5, 2024, the Plaintiff filed a witness list indicating that Dr. Gerald A. Shiener would provide expert testimony regarding the Plaintiff’s psychological damages, and Jeffrey Bagalis would provide expert testimony as to the Plaintiff’s economic damages. The Plaintiff served Bagalis’ report on the Defendant on July 18, 2024. Generally, he opined that the Plaintiff’s economic damages exceed $1.2 million. At oral argument, the Plaintiff stated that she had furnished a report from Shiener on September 12, 2024.
The Defendant asked the Court to exclude the testimony of Bagalis and Shiener because the disclosures were woefully late. Blue Cross maintained that the Plaintiff’s expert disclosures came as a surprise because she did not list either expert on her initial disclosures or include them in her responses to its discovery requests, and Blue Cross did not have an opportunity to depose them during the discovery period.
Psychiatry Expert Witness
Dr. Gerald Shiener, MD, is a board-certified psychiatrist with over 40 years of experience. He is also an Assistant Professor in the Department of Psychiatry at Michigan State University.
Jeffrey Bagalis is the Managing Member of Accurity Group, LLC (“Accurity”), a Certified Public Accountant (CPA), Accredited in Business Valuations (ABV), and Certified in Financial Forensics (CFF) with over 20 years of experience providing a wide range of professional service.
The Court held that the Plaintiff’s expert disclosures in this case plainly were deficient. Under the scheduling order, Domski was obligated to serve her Rule 26(a)(2)(B) and (C) disclosures on or before December 7, 2024. Neither of her proposed expert witnesses was disclosed formally until July 5, 2024, more than half a year past the deadline.
The Plaintiff’s disclosures also were substantively deficient. Because Shiener and Bagalis were retained experts, Rule 26(a)(2)(B) required Domski to furnish a report containing, among other things, a complete statement of the expert’s opinions and their basis, “the facts or data considered by the witness,” a statement of the expert’s experiences and qualifications, and information about the expert’s compensation. She did not provide a report for Bagalis until July 18, 2024 and did not provide a report from Shiener until after the briefing was completed on this motion.
Citing Rule 26(a)(2)(D)(i), the Plaintiff appears to argue that her expert disclosure was timely because that rule establishes a deadline of 90 days before trial. She forgot, however, that this is a default rule, which only applies “[a]bsent a stipulation or a court order.”
Surprise
The Plaintiff argued that its expert disclosures did not surprise the Defendant for two reasons. Initially, she said that her responses to the Defendant’s interrogatories in November 2023 put it on notice of her intention to seek expert testimony regarding her economic and psychological damages. She added that her attorney’s February 4, 2024 email regarding expert discovery in the other cases the attorneys were managing together should have alerted him to her intentions in this case.
Despite the Plaintiff’s representation about her intentions, it is uncontested that she never disclosed information about any expert by the December 7, 2023 deadline. By its own terms, the Plaintiff’s email would seem to exclude Domski’s case because the discovery deadline had already passed, and no dispositive motions had been filed. The Court expressly stated that the scheduling order in this case trumps any inconsistent provision of the consolidation order governing the other cases.
All should have been aware that this case has its own scheduling order and deadlines for expert disclosure, so nothing about the email necessarily alerted the Defendant that the Plaintiff intended to use Bagalis and Shiener in this case.
Therefore, the Court held that these two announcements did not minimize the effect of the Plaintiff’s late disclosures on this case; it was reasonable for the Defendant to believe that the Plaintiff did not anticipate using expert testimony in this matter. And even if the Defendant was informed that expert witnesses might be part of the Plaintiff’s evidentiary presentation, that information was not much use without the detail required by Rule 26(a)(2)(B).
Ability to Cure Surprise and Disruption to Trial
The Plaintiff’s argument that the surprise can be cured takes two paths. First, she says that it was the Defendant that “manufactured” the surprise by not moving to compel the production of the missing expert reports and by not responding to her attorney’s February 4, 2024 email containing her counsel’s “plan.”
However, Rule 26(a)(2) places the disclosure obligation on the party offering the evidence, in this case, the Plaintiff. The Defendant was under no obligation to seek the production of a report it did not know existed and had no reason to suspect would be forthcoming, and the February 4, 2024 email contained no indication that it applied to this case. The Defendant only became aware of the Plaintiff’s intention to use experts for this case in July and filed a motion to exclude these untimely-disclosed witnesses shortly thereafter.
The Plaintiff argued that there is ample opportunity to cure any surprise and only a small likelihood of disrupting the trial date because she can make her experts available for depositions before the trial, or the trial date can be adjusted.
The Court disagreed. For one, taking these depositions is only one step in the Defendant’s likely trial preparation. It is reasonable to anticipate that the Defendant would want to find its own rebuttal experts, provide the factual materials to them, generate reports, and prepare them for trial. At oral argument, Plaintiff’s counsel acknowledged that Schiener actually examined the Plaintiff before completing his report. Presumably, a defense expert would want to do the same. And the Plaintiff forgets that compressing the schedule as she suggests would deprive the Defendant of mounting a Daubertchallenge to the expert witnesses’ testimony.
Certainly, issuing a new scheduling order would cure all of these difficulties. But the Plaintiff must demonstrate good cause for that relief.
Importance of the Evidence
Both sides seem to agree that the testimony of Bagalis and Shiener relates only to the question of damages. Excluding Bagalis and Shiener as witnesses will not make or break the Plaintiff’s liability case.
In this case at least, the Court held that the unimportance of the evidence, when measured against the burden of providing the Defendant an opportunity to take expert discovery and procure rebuttal experts in an otherwise straight-forward case, weighs against the Plaintiff.
Non-Disclosing Party’s Explanation
The Plaintiff’s explanation for failing to disclose her expert reports by the ordered deadline is unclear, which, perhaps, is at least partially attributable to her apparent belief that the reports were submitted timely. The Plaintiff seems to view her lapse within the context of the other ongoing lawsuits against the Defendant being managed by her counsel.
The Court held that this explanation is unpersuasive; it confounds the tasks of litigating wholesale multiple similar claims with producing discovery that is inherently individualized.
And each of those Plaintiffs no doubt will present their own evidence of damages. Domski’s case stands on its own and is subject to its own scheduling order. As the Court has previously reminded the parties, “counsel should have evaluated whether it was prudent to take on this workload if they were not prepared to litigate each case to completion by the dates established in the Court’s scheduling order.”
Held
The Defendant’s motion to exclude the Plaintiff’s proposed expert witnesses Gerald A. Shiener and Jeffrey Bagalis is granted.
Key Takeaway:
Because of the Plaintiff’s late disclosure, the Defendant would be deprived of the opportunity for an evidentiary challenge under Evidence Rule 702 and probably would not be able to marshal rebuttal evidence in a measured and non-rushed manner, which the scheduling order was intended to avoid.
The Plaintiff failed to comply with the deadlines for disclosing expert witness information, and she has not shown that the failure was substantially justified or harmless. The mandatory preclusion sanctions in Rule 37(c)(1) apply here.
On a foggy night in November 2015, Plaintiff Kedron Gaston, a minor at the time, was heavily injured in a car accident. The car, driven by her aunt, collided with the back of a semi-truck, resulting in her aunt’s death. The Plaintiff’s mother, seated in the front passenger position, suffered severe injuries that made her unable to care for the Plaintiff and her sister. Consequently, Plaintiff entered foster care. She subsequently sued the semi-truck driver, Defendant Jackie Hazeltine (“Hazeltine”) and his employer, Defendant Royal Paper Stock Co., Inc. (“RPS”), for negligence and for causing emotional distress. The Plaintiff also filed a lawsuit against RPS and Hazeltine’s insurer, Defendant Grange Mutual Casualty Co. (“Grange”), for spoliation related to testing performed on the semi’s rear lighting in July 2016 by Grange’s expert Adam Hyde.
Key issues include the functionality and activation of the semi’s rear lighting system at the time of the accident; the handling of the lighting system after the accident, especially the right rear taillight; and the nature and extent of Plaintiff’s loss and injuries as the result of the accident.
The Defendants hired expert witnesses to provide insights on these matters. Forensic psychiatry expert witness Stevan Weine concluded in his expert report dated March 2, 2023, that the Plaintiff did not exhibit any psychiatric condition during her February 2023 interview, despite previous psychiatric diagnoses. Automotive engineering expert witness Erik Anderson determined that the semi’s rear-facing light assembly was well preserved and capable of being tested to determine whether the bulbs were energized at the time of the accident. Accident reconstruction expert witness, Steven Grundhoefer confirmed that the semi’s taillights were functional and illuminated at the time of the accident.
Stevan M. Weine is the Professor of Psychiatry at the UIC College of Medicine, where he’s also the Director of Global Medicine and Director of the Center for Global Health. For 30 years he has been conducting research both with refugees and migrants in the U.S. and in post-conflict countries, focused on mental health, health, and violence prevention.
His work has been supported by multiple grants from the NIMH, NICHD, DHS, NIJ, and other state, federal, and private funders, all with collaboration from community partners. This work has resulted in more than 130 publications and three books. He has been awarded two Career Scientist Awards: “Services Based Research with Refugee Families” from the National Institute of Mental Health and “Labor Migration and Multilevel HIV Prevention” from the National Institute of Child Health and Human Development.
Weine is the 2020 recipient of the Abraham L. Halpern Humanitarian Award of the American Association for Social Psychiatry and the 2023 recipient of the Piergiorgio L.E. Uslenghi Global Engagement Faculty Award.
Erik Selmer Anderson is an automotive engineer with nearly twenty years of professional experience, fourteen of which were spent working directly for automotive manufacturers. He has direct design and testing experience in vehicle structures, crashworthiness, and closure systems engineering. Erik applies his expertise to expert witness investigations pertaining to vehicle crashworthiness, crash reconstruction, vehicle systems performance, and exterior/interior upper body mechanisms.
Upon completion of his degree in Mechanical Engineering, Erik worked for eight years with Nissan. There, he held positions in Body Design, Closures Design, and Crash Safety. As a Crash Safety engineer, he was responsible for ensuring the achievement of dynamic safety targets, both on a component basis and for complete vehicle performance. This included work in both the virtual design phase through simulation analysis, as well as overseeing and analyzing physical crash testing. Erik performed design/test work on sedans, pickup trucks, crossovers, and cargo vehicles throughout the entire development lifecycle and into mass production.
Continuing his automotive career, Erik then worked at Honda Research & Development for six years, where he was responsible for closures design engineering as a design team chief. At Honda, Erik led a team of design engineers in developing all aspects of minivan slide doors. He also served as design chief for minor-model updates on pickup truck door and tailgate closures. Erik has expertise in all elements of upper body design, including structures, dynamic and static crash safety, sealing, NVH, power-door systems, latches, and exterior/interior components, among others.
Erik earned his Engineering degree from the University of Michigan, one of the nation’s most respected programs. Throughout his career, he has accumulated a multitude of patents for key innovations in upper body design. His education and deep industry experience designing and testing vehicles qualify Erik to investigate a broad range of vehicle topics.
Steven Grundhoefer has 20 years of experience in traffic accident reconstruction. In addition to being ACTAR certified, he is a licensed Professional Engineer in Indiana, Kentucky, Ohio, and Illinois. He possesses extensive trial and deposition experience. He holds a Bachelor’s Degree in Civil Engineering from Purdue University and has approximately 10 years of experience in roadway and site design.
Plaintiff argued that Weine lacked expertise regarding adolescents impacted by traumatic events like car crashes. She pointed out that his CV highlighted experience in global health and refugee issues, but it lacked specific trauma experience related to car accidents involving children. One reference in his CV mentioned “Forensic Psychiatry Practice,” but it did not provide dates to indicate his experience in this area.
However, the Court found that Weine’s CV showed significant experience in analyzing and treating adolescents affected by trauma. He held a fellowship at Yale focused on college students’ mental health and worked as an attending psychiatrist in their Adolescent Partial Hospital. He co-authored articles related to psychiatric care for child and adolescent patients.
In an affidavit, Weine stated he had extensive experience with children and adolescents in traumatic situations. He explained that diagnosing PTSD due to various traumatic events followed a similar approach. His forensic psychiatric practice spanned over 20 years, including cases involving trauma from motor vehicle accidents.
Plaintiff also claimed Weine lacked experience in forensic interviews, citing a failure to discuss informed consent extensively during their interview. However, the transcript along with Weine’s affidavit shows that he discussed the elements of informed consent, including the limits of confidentiality, the extent of his intended disclosures, and the purpose of the interview, with Plaintiff before she agreed to proceed with the interview.
Grange successfully demonstrated that Weine’s qualifications allowed him to address the effects of the Plaintiff’s injuries on her development. The Court held he was qualified to testify as an expert witness under Rule 702.
B. Reliability
The Plaintiff argued that Weine’s opinions from his March 2023 report lacked reliability for two reasons. First, she claimed he did not review enough facts or data before reaching his conclusions about her mental health and history. Second, she criticized his methodology for its inconsistency with ethical guidelines followed in the practice of forensic psychiatry. Based on these points, Plaintiff asserted that Weine’s opinions did not reflect reliable principles in the mental health field.
1. Collateral Information
AAPL Forensic Guideline 5.3 emphasizes the importance of reviewing collateral information in forensic assessments. The Plaintiff claimed Weine violated this guideline by excluding collateral information. However, the argument failed for two reasons.
First, Forensic Guideline 1 clarified that the guidelines do not dictate standards for evaluations. Psychiatrists must use professional judgment to determine appropriate methods of performing a forensic evaluation based on unique circumstances.
Second, the Court found that Weine did consider collateral information. Plaintiff defined collateral information as data obtained from sources other than the subject but did not specify what collateral information Weine excluded from his analysis. According to his report, he reviewed “a variety of documents and videos, including Gaston’s school records from elementary school to present, her employment and training records, medical records, video footage of her deposition, and video footage of the depositions of her guardians, Matthew and Tamara Cochran” in addition to collateral information listed in his report.
Despite these claims, any potential non-compliance with Rule 26(a) was harmless. Courts assess harmlessness based on factors like prejudice to the opposing party and whether the omission disrupted the trial. The Court held that prejudice to Plaintiff is minimal and has been remedied to a degree with Weine’s recent affidavit, which discloses his sources.
2. Context, Frequency, Intensity of Symptoms
The Plaintiff further argued that Weine’s assessment failed to address the context, frequency, and intensity of her symptoms. However, Weine’s notes and report showed he investigated her experiences at school and work. Disagreements between Weine and Westcott about the adequacy of this context relate to substance rather than reliability, making it an issue for the factfinder.
Regarding the frequency and intensity of her symptoms, the Court found that Weine had asked about these aspects during the interview. Though he and Westcott employed different styles, he adequately explored the necessary details.
Plaintiff also contended that Weine did not follow accepted methodologies for diagnosing her potential psychiatric disorders. However, he reported her scores on relevant diagnostic tests consistent with best practices.
The Plaintiff criticized Weine’s report for presenting her history through unattributed quotations, alleging many inaccuracies and typographical errors. However, Weine explained he relied on his notes during the report’s preparation. The discrepancies between his report and the interview transcript were minor and did not undermine his reliability.
Finally, the Plaintiff disputed Weine’s assessment of her quality-of-life post-accident, alleging he manipulated facts. The Court observed that such factual disputes should be explored through cross-examination rather than exclusion of evidence. The evidence showed that Weine’s testimony was admissible under Rule 702 and Daubert.
C. Federal Rule of Evidence 403
Federal Rule of Evidence 403 allows Courts to exclude evidence if its probative value is substantially outweighed by the risk of unfair prejudice or confusion. The Plaintiff further argued that Weine’s report could mislead the jury due to alleged mishandling of facts. However, her previous challenges to his reliability had been dismissed, and she presented no further arguments of undue prejudice.
There was no indication that Weine’s testimony would evoke irrational behavior from the jury. His report clearly explained the Plaintiff’s history and his conclusions. Given the central nature of her damages to the case, Weine’s opinions held significant probative value. Therefore, his testimony remained admissible under Rule 403.
II. Erik Anderson
Erik Anderson was retained by Grange to assess whether the rear right trailer taillight bulb could be analyzed for energization during the crash. In forming his conclusions, Anderson reviewed evidence, including video footage and photographs from a visual inspection conducted on November 29, 2022 which he did not attend. This inspection was notice by RPS and Hazeltine on November 17, 2022. The notice aimed to confirm the condition of the light assembly previously inspected by Grange’s expert, Adam Hyde, in July 2016.
The notice outlined a protocol for the inspection. This protocol restricted all contact with the light assembly to Hyde and required electronic recording by an identified individual. It also mandated a certification process for attendees.
In response, the Plaintiff reiterated her stance that Hyde had destroyed the light assembly in 2016, calling the visual inspection a “sham.” However, she did not object to any part of the inspection protocol but repeated her argument that Hyde’s actions precluded further analysis. Neither she nor her representatives attended the inspection.
Plaintiff argued that Anderson’s opinions should be excluded under Fed. R. Evid. 702 and Daubert due to unreliability. She claimed he relied on evidence from an improperly conducted inspection and disregarded conflicting evidence. Alternatively, she contended that his testimony could confuse the jury and should be excluded under Fed. R. Evid. 403.
A. Reliability
The Plaintiff argued that Anderson’s opinions were unreliable because they stemmed from his review of the November 2022 visual inspection, conducted without an agreed protocol or Court order. She claimed RPS and Hazeltine violated local rules by proceeding without proper certification of a discovery dispute. However, their notice did not demonstrate any unresolved dispute that required her involvement.
Moreover, the Plaintiff’s response to the notice did not request any relief regarding the inspection. She did not question the protocol or seek to halt the visual inspection. Instead, she expressed skepticism about RPS and Hazeltine’s motivations. Consequently, her response did not raise any legal issues for the Court. Later, she aimed to undermine Anderson’s reliability based on her previous response, yet she provided no authority to connect her concerns to his methods. Therefore, the Court allowed Anderson’s testimony under Rule 702 and Daubert.
B. Federal Rule of Evidence 403
The Plaintiff’s alternative argument for excluding Anderson’s opinions under Fed. R. Evid. 403 also failed. She focused on this Court’s acceptance of findings from her mother’s case against RPS and Hazeltine regarding spoliation of the light assembly. The Court confirmed that the findings on spoliation applied here and stated that while RPS and Hazeltine could not relitigate the spoliation issue, Grange could.
The Plaintiff suggested that Anderson’s differing opinions would confuse the jury about how the same event could represent spoliation for one party but not another. However, her concern lacked merit. The condition of the light assembly was crucial to the spoliation claim against Grange, making Anderson’s insights highly relevant.
The Plaintiff merely implied that the differences between his opinions and those of other experts would confuse the jury. Yet, the jury’s role is to weigh competing evidence to resolve factual questions. She failed to provide substantial support for her claim that Anderson’s opinions would confuse the jury regarding spoliation.
Thus, the Court determined that the probative value of Anderson’s opinions outweighed any risk of undue prejudice or confusion. Consequently, his opinions and testimony remained admissible under Fed. R. Evid. 403.
III. Steven Grundhoefer
Steven Grundhoefer was hired by RPS and Hazeltine to study and survey the November 2015 collision site. His work aimed to assist in analyzing and reconstructing the accident. Grundhoefer summarized his findings in 43 bullet points. The Plaintiff challenged one of these opinions and requested to exclude Grundhoefer’s entire opinion as unreliable under Fed. R. Evid. 702 and Daubert, or as potentially confusing under Fed. R. Evid. 403.
The Plaintiff contested Grundhoefer’s assertion that the four rear taillights on the semi-trailer were illuminated during the collision. She argued that he based this conclusion on police photographs taken after the crash. Additionally, she claimed this opinion conflicted with Hyde’s expert testimony from her mother’s case before the Wabash Court, which stated the lights were off at the time of the accident. The Plaintiff also pointed to conflicting testimonies from officers present at the scene, suggesting that Grundhoefer selectively used evidence to support his preferred conclusion. She argued that the differing expert opinions indicated Grundhoefer’s findings were unreliable.
The Plaintiff’s arguments highlighted that this case might require a “battle of the experts” to resolve the issue of the lights’ illumination during the crash. Expert testimony would likely help the factfinder assess the conflicting evidence regarding illumination, crucial for determining the Plaintiff’s negligence and spoliation claims. The Plaintiff attempted to undermine Grundhoefer’s opinion without solid support, which did not diminish its relevance to the factfinder.
Moreover, RPS and Hazeltine demonstrated that Grundhoefer considered more than one set of police photographs in forming his opinion about the lights. His amended report and affidavit revealed he reviewed photographs and videos from inspections of the taillights and bulbs, alongside police scene images.
The Plaintiff argued that Grundhoefer selectively ignored key evidence. Specifically, he overlooked the deposition testimony from Detective Sergeant Mike Davis and Trooper Swisher. Officer Davis had testified about the flashers’ illumination while at the scene. The Plaintiff suggested that his testimony contradicted Grundhoefer’s conclusions regarding the lights, but she did not clarify this alleged contradiction.
In contrast, RPS and Hazeltine argued that Officer Davis’s testimony did not contradict Grundhoefer at all. Trooper Swisher noted that he believed the taillight was not functioning before the crash. While this testimony might seem to contradict Grundhoefer, the Plaintiff failed to provide evidence showing that an expert must align with every witness’s account to be deemed reliable. Her concerns highlighted the necessity for the factfinder to consider all evidence, including Grundhoefer’s opinion.
Therefore, Grundhoefer’s opinion about the lights’ illumination and his entire expert report were sufficiently reliable for admission under Rule 702 and Daubert. The Plaintiff’s unsupported claim that Grundhoefer’s opinion could confuse the jury did not justify the exclusion his testimony under Fed. R. Evid. 403.
Held
The Court denied the Plaintiff’s motions to exclude the testimony of Defendants’ expert witnesses Stevan Weine, Erik Anderson, and Steven Grundhoefer.
Key Takeaways:
The Court allowed the testimony of Defendants’ expert witnesses based on their qualifications and the reliability of their methodologies.
The Court determined that each expert witness had extensive relevant experience—Weine in forensic psychiatry concerning trauma, Anderson in automotive engineering with a focus on vehicle safety, and Grundhoefer in accident reconstruction.
The Court also determined that the expert witnesses employed established methods appropriate for their fields. Weine reviewed adequate collateral information, Anderson followed an inspection protocol, and Grundhoefer considered multiple sources in his analysis.
The Court concluded that the probative value of the expert witnesses’ testimonies outweighed any potential for confusion or prejudice, reinforcing the need for juries to assess conflicting evidence in determining facts.
In conclusion, the Court upheld the admissibility of the expert testimony under Federal Rules of Evidence 702 and 403.
Case Details:
Case Caption:
Gaston V. Hazeltine
Docket Number:
3:21cv896
Court:
United States District Court for the Northern District of Indiana, South Bend Division
Defendant Ryan Vangdy is charged with knowingly possessing firearms while being an unlawful user of a controlled substance.
The government filed a motion to exclude Defendant’s expert, Dr. Gregory Nawalanic. The government argued that the Court can exclude Nawalanic under Rule 702 for several reasons, specifically that the testimony is irrelevant, unhelpful to the jury, only serves to confuse the issues, and is likely to introduce inadmissible hearsay.
Psychiatry Expert Witness
Gregory Nawalanic, Psy.D., is a clinical assistant professor in the Department of Psychiatry and Behavioral Sciences at the University of Kansas Medical Center and the clinical director of Psychology Services at The University of Kansas Health System’s Strawberry Hill Campus.
In addition to supervising the behavioral health staff, he provides clinical instruction to psychology interns and postdoctoral fellows, as well as psychiatry residents. He also operates as part of the executive leadership of the facility.
Along with a bachelor’s degree and a master’s degree in psychology from Florida International University and Pepperdine University, respectively, he also holds a master’s degree and a doctor of psychology in clinical psychology from the American School of Professional Psychology at Argosy University.
To begin with, the Defendant proposed to introduce testimony from Gregory Nawalanic regarding the DSM-V criteria for cannabis use disorder, and to testify as to the difference between “frequent and infrequent” use of controlled substances.
Defendant’s expert disclosure indicated that Nawalanic would testify that a hypothetical user who consumed marijuana two to four times a month would not meet the criteria for being diagnosed with cannabis use disorder under the DSM-5. Nawalanic would not offer an opinion as to whether Defendant was an unlawful user of a controlled substance on October 6, 2021.
The Court found that Nawalanic’s testimony was relevant to the issues being presented to the jury. The primary inquiry for the jury is whether Defendant possessed a firearm in or affecting interstate commerce when he was a regular and ongoing user of a controlled substance.
Cannabis use disorder would make it more likely that the individual was an unlawful user within the meaning of the statute. Moreover, the Court held that this potentially helpful information was not greatly outweighed by the risk of confusion because Nawalanic is not trying to testify to the ultimate legal issues, and any hearsay concerns can be dealt with by contemporaneous objection.
Held
The Court denied the Government’s motion to exclude Dr. Gregory Nawalanic’s testimony.
Key Takeaway:
In conclusion, Nawalanic’s testimony provided the Court with potentially helpful information to determine whether Defendant possessed a firearm in or affecting interstate commerce when he was a regular and ongoing user of a controlled substance.
More often than not, public school employees call students by the pronouns matching the gender on their birth certificate, no matter the child’s preference and it is a misdemeanor to use restrooms in public buildings that do not correspondent to the person’s gender at birth. If lawmakers advance bills that mandate the same, how do we expect discrimination against transgender individuals to diminish?
Four transgender adults and seven parents of transgender minors challenged the constitutionality of a Florida statute that prohibited transgender minors from receiving widely accepted gender-affirming medical care and impose restrictions on how such care can be provided. The Plaintiffs had urged the Court to specifically block one part of the law that bars doctors and nurses from prescribing or administering transition-related medication to children, and another part that exposes medical providers to criminal liability and professional discipline for doing so.
The kinds of care at issue are puberty blockers and cross-sex hormones. For many years, the State of Florida allowed use of these medications to treat gender dysphoria. Yet, while other states restricted the use of state funds to pay for transgender care, Florida was the first to restrict care for transgender adults who were not relying on Medicaid. “But then the political winds changed,” wrote Judge Robert L. Hinkle of Federal District Court in Tallahassee.
Last June, Judge Hinkle temporarily blocked enforcement of parts of the law for the children of the three families who filed the lawsuit. He ruled specifically that three transgender children can be prescribed puberty blockers despite the new state law, which also added new hurdles for adults seeking similar care.
Psychiatry Expert Witness
Dr. Stephen B. Levine is an expert in gender dysphoria and gender identity. He is a Distinguished Life Fellow of the American Psychiatric Association and a professor with many years of experience in the fields of gender and sexuality.
Levine chaired a committee that crafted a pioneering set of standards of care for individuals suffering from gender dysphoria, and he has been a senior editor for three editions of the Handbook of Clinical Sexuality for Mental Health Professionals. He also founded a gender identity clinic in 1974, which he continues to lead as co-director.
Levine did a psychiatric internship and residency at University Hospitals of Cleveland, working in that hospital’s Sexual Dysfunction Clinic. In 1993 the clinic separated from University Hospitals to become The Center for Marital and Sexual Health (now called DELR).
The challenged statute prohibited gender-affirming care for minors—for patients under age 18—subject to a grandfather provision allowing minors who were already receiving this care to continue do so. It restricted the manner in which gender-affirming care could be provided to adults and to grandfathered minors. Such laws deprive parents of their fundamental right to make medical decisions for their children and underestimate the impact denial of transition care has on the physical and mental health of the children.
Judge Hinkle said that “gender identity is real” and that a “widely accepted standard of care” includes puberty blockers and hormone treatments that Florida unlawfully banned. He added, “The State of Florida can regulate as needed but cannot flatly deny transgender individuals safe and effective medical treatment.” Not just the Defendants, but also defense expert Dr. Stephen B. Levine with his extensive experience treating a significant number of transgender patients admitted it.
Stephen B. Levine
At a committee hearing, a minor from another state gave comments indicating she received gender-affirming care and a mastectomy, without meeting the prerequisites to such care under the Endocrine Society and WPATH guidelines.
Hinkle noted that Levine’s testimony providing a legitimate, nondiscriminatory basis for restricting the availability of gender-affirming care for minors met the Daubert standard.
Levine has repeatedly testified about the many risks associated with “affirming” transgender identity in children in various cases. According to Levine, both the long-term and short-term implications of life as a transgender individual are crucial when it comes to social transitioning. He has cited multiple studies from different nations that have documented the increased vulnerability of the adult transgender population to substance abuse, mood and anxiety disorders, suicidal ideation, and other health problems.
Levine casts doubt on the claim that puberty blockers are completely reversible. He adds that there are social risks associated with delayed puberty. Levine writes, “individuals in whom puberty is delayed multiple years are likely to suffer at least subtle negative psychosocial and self-confidence effects.”
However, at one point in this case, Levine testified that treatment with GnRH agonists and cross-sex hormones is sometimes appropriate. He would demand appropriate safeguards, as discussed below, but he would not ban the treatments. Levine suggested prerequisites to gender-affirming care.
Held
Hinkle found Levine’s arguments in favor of restricting the availability of gender-affirming care persuasive but sided with advocacy groups and three families who had said that the law deprived them of parents’ rights to make medical decisions for their transgender children.
He declared key parts of a Florida law banning gender transition care for minors and imposing hurdles on adults seeking such care unconstitutional.
Key Takeaway:
Puberty blockers and other forms of gender transition care for children give transgender adolescents and their families time to weigh important medical decisions. Studies report that teens who had access to puberty blockers and hormone therapy require fewer gender-affirming surgeries as adults. Plaintiffs, in this case, challenged the constitutionality of a statute that denied transgender individuals safe and effective medical treatment.
The legislation codified policies adopted last year by the Florida Board of Medicine and Board of Osteopathic Medicine — whose members are appointed by the governor — that banned hormone treatments for people under 18 unless they were already receiving such care.
While laws prohibiting access to gender transition care might end up causing irreparable harm, it is equally important weigh in social risks associated with delayed puberty.
Levine is of the opinion that ushering gender-dysphoric children toward social transition to the opposite sex is an experimental therapy that exposes these vulnerable children to more mental health risks.
Case Details:
Case Caption:
Jane Doe V. Joseph A. Lapado
Docket Number:
4:23cv114
Court:
United States District Court for the Northern District of Florida, Tallahassee Division
