This medical negligence lawsuit stems from injuries Fitzgerald sustained after he allegedly developed compartment syndrome in his right leg while hospitalized at St. Anthony Summit Medical Center (“Summit”) after a snowboarding accident in January 2019.
Fitzgerald claimed that the delayed diagnosis and treatment of his compartment syndrome by his healthcare providers, Dr. Xan Courville and P.A. Sarah Pfeiffer, resulted in permanent nerve damage in his leg and continuous, intense pain. He further asserts that Summit’s negligence in staff training and policy implementation contributed to his lasting injury.
Fitzgerald sustained a traumatic brain injury (TBI) in August 2020 after a fall from a three-story roof in the building. It is seemingly agreed that he was “under the influence of a self-medicating substance”—identified by his experts as Ketamine—at the time of the fall. In January 2021, Fitzgerald initiated legal action, claiming that the fall and subsequent TBI were a consequence of his nerve injury. He alleges this nerve injury stemmed from Dr. Courville and P.A. Pfeiffer’s delayed diagnosis and treatment of his compartment syndrome.
In March 2025, Summit moved to exclude the following testimony of Robert Jamison: “It is my opinion to a reasonable degree of certainty that, more likely than not, the injuries flowing from the delayed treatment of Fitzgerald’s compartment syndrome-related injuries to his leg were a cause of and a contributing factor to his fall and traumatic [sic] brain injury.”
Psychology Expert Witness
Robert Newlin Jamison is a clinical psychologist. He received a Ph.D. in psychology from the Institute of Psychiatry at the University of London; completed multiple internships in clinical psychology; completed a post-doctoral fellowship at Vanderbilt Medical Center; and has practiced at Brigham and Women’s Hospital Pain Management Center for 35 years.
Jamison is a Professor at Harvard Medical School with appointments in the Departments of Anesthesiology, Perioperative and Pain Medicine, Psychiatry, and Physical Medicine and Rehabilitation.
Summit did not move to exclude Jamison as an expert witness altogether, instead making clear that it “has no objection to [him] offering opinions regarding the treatment of Joseph Fitzgerald’s chronic pain or his present condition following the fall from the third-floor building roof.”
Summit contended, rather, that Jamison is not qualified and has not employed a reliable methodology to opine on the medical cause of Fitzgerald’s TBI.
Qualification
The cause of Fitzgerald’s TBI calls for a medical opinion. But Jamison is not a medical doctor. Despite Jamison’s notable credentials, the Court finds that he lacks the necessary qualifications under the Daubert standard to offer an expert opinion on the medical cause of Fitzgerald’s TBI. Specifically, he is not qualified to provide expert testimony that “Fitzgerald’s compartment syndrome-related injuries to his leg were a cause of and a contributing factor to his fall and traumatic [sic] brain injury.”
Arguing otherwise, Fitzgerald insisted that “Jamison is overwhelmingly qualified to offer causation opinions on the treatments of chronic pain; that chronic pain can lead to self-medicating behavior; and that self-medicating behavior can be harmful.”
Contrary to Fitzgerald’s first assertion, however, Jamison’s proffered testimony does not simply connect Fitzgerald’s chronic pain to his self-medicating behavior (i.e., his Ketamine use), the fall, and ultimately, the TBI. It goes several steps further and posits that “the injuries flowing from the delayed treatment of Fitzgerald’s compartment syndrome-related injuries to his leg were a cause of and a contributing factor to his fall and traumatic injury brain injury.” The Court determined that this type of testimony regarding medical causation falls outside Jamison’s area of expertise.
Moreover, Jamison’s CV made no mention of experience personally dealing with compartment syndrome, and Jamison confirmed during his deposition that he had merely “heard about compartment syndrome and heard about a lot of accidents and also surgeries and failed surgeries that contributed to complications.”
Methodology
Jamison prepared two reports following his virtual meetings with Fitzgerald and his parents.
Therein, Jamison notes—and Fitzgerald emphasizes—that he reached his causation opinion based on Fitzgerald’s medical records, his meetings with Fitzgerald, and by reviewing the reports prepared by other experts in this case.
The Court concluded that Jamison’s methodology was unreliable, notably because he apparently failed to expressly conduct a differential analysis before opining that “the injuries flowing from the delayed treatment of Fitzgerald’s compartment syndrome-related injuries to his leg were a cause of and a contributing factor to his fall and traumatic [sic] brain injury.”
Moreover, Jamison’s report does not show that he “eliminat[ed] alternative causes when employing a ‘differential analysis.’” To reiterate, “[d]ifferential analysis, which is the process of reasoning to the best inference, requires that the expert provide objective reasons for eliminating alternative causes.”
The Court pointed out that while the report briefly mentions Fitzgerald’s Ketamine use on the day he fell, it lacks any “objective reasons” explaining why this wasn’t a possible cause of the fall.
Summit contended, backed by expert testimony, that “the post-[snowboarding] accident injuries are the result of unrelated ‘traction’ or ‘stretch’ injury.” In contrast, the Court noted that Jamison’s report completely ignores these other possibilities and offers no arguments against their potential role.
Held
The Court granted the motion to exclude certain testimony of Plaintiff Joseph Fitzgerald’s expert witness, Robert Jamison, Ph.D.
Key Takeaway:
The Court sees little to no record evidence suggesting that Fitzgerald could lay a proper foundation at trial that Jamison is qualified to testify that the allegedly delayed diagnosis and treatment of Fitzgerald’s compartment syndrome led to his TBI.
Moreover, the courtroom is not the place for scientific guesswork. Given the deficiencies outlined above regarding Jamison’s causation opinions, the Court is not convinced that he would be able “to reliably defend his conclusion at trial.”
Case Details:
Case Caption:
Fitzgerald Et Al V. Catholic Health Initiatives Colorado Et Al
Plaintiff was raped in September 2018, when she was a student at Louisiana Tech University. Her attacker—known to her only as “Daniel”—was also a Tech student, having recently transferred from University of Louisiana Lafayette (“UL Lafayette ). At the time, Plaintiff did not know that “Daniel” was a sexual predator who had been reported for rape and other sexual misconduct on five prior occasions.
However, the Board of Supervisors of Louisiana State University and Agricultural and Mechanical College (“LSU”) allegedly knew “Daniel’s” identity—Victor Daniel Silva—and his past.
Despite five alleged assaults, a rape arrest, and banishment from LSU, Plaintiff contended that Silva was not suspended, expelled, criminally prosecuted, or even meaningfully investigated. Instead, in the face of new allegations, Silva was allowed to transfer repeatedly among LSU, UL Lafayette, and Louisiana Tech. Even after Plaintiff reported her rape to Louisiana Tech—Silva’s sixth alleged assault—Silva transferred back to UL Lafayette and graduated with a clean academic record.
The Board of Supervisors of the University of Louisiana System (“ULS”)- which supervises both UL Lafayette and Louisiana Tech—allegedly knew of Silva because he transferred repeatedly between UL Lafayette and Tech, and was placed on academic probation after he was arrested for rape.
Plaintiff filed her complaint on May 25, 2022, asserting claims of deliberate indifference under Title IX and negligence under Louisiana state law against ULS.
Defendant Board of Supervisors of the University of Louisiana System filed a motion in limine and Daubert motion to exclude or limit the testimony of Plaintiff’s expert witness Julie Medlin.
Psychology Expert Witness
Julie Medlin is the Director of Medlin Treatment Center. She is a licensed psychologist and trauma expert who has over 29 years of clinical experience in evaluating and treating children, adolescents, and adults. She obtained her bachelor’s degree in psychology from Harvard University, and her master’s and doctoral degrees in Clinical Psychology from the University of Florida. Dr. Medlin specializes in assessments and conducts psychological, sexual trauma, psychosexual, and forensic evaluations. She served as the forensic evaluator for the Wilbanks Child Endangerment and Sexual Exploitation (CEASE) Clinic at the University of Georgia School of Law. She has expertise in the fields of trauma, sexual abuse, and sexual deviancy.
Federal law requires publicly-funded universities to immediately and effectively investigate reports of sexual assault to eliminate the threat and prevent its reoccurrence. Louisiana law requires coordinated intervention among public universities and local law enforcement to identify and remove sexual offenders from college campuses.
To merit exclusion of Medlin’s testimony on account of Plaintiff’s failure to timely disclose a list of matters in which Medlin had previously testified as an expert witness would be an overly punitive sanction for an error the Court considered relatively mundane. Exclusion of testimony for a violation to Rule 26 may be justified by four factors: “(1) the importance of the evidence; (2) the prejudice to the opposing party of including the evidence; (3) the possibility of curing such prejudice by granting a continuance; and (4) the explanation for the party’s failure to disclose.”
The Court held that the offered evidence is important to Plaintiff’s case, as Medlin is her sole psychological expert, and the prejudice to ULS is negligible given that Medlin was otherwise timely and properly designated as an expert and given that the requested list of matters was provided a full year before the scheduled trial date. Lastly, this negligible prejudice can be cured by allowing Medlin’s deposition to be reopened on a limited basis upon ULS’s motion.
Sex Offenders
ULS requested that the Court bar Medlin from testifying to the topic of sex offenders and/or whether Silva should have been convicted of a sexual offense. Plaintiff did not contest this exclusion, and stated that Medlin would not be offered to testify to these issues. ULS’ Motion on these grounds was therefore denied for present purposes as unnecessary. Should Medlin seek to testify to matters outside of her expertise at trial, the Court will limit her testimony accordingly.
Suicidal Ideation
ULS also requested that the Court exclude Medlin’s statement in her expert report that following Plaintiff’s deposition, her suicidal thoughts returned. The gravamen of ULS’ argument is that Medlin did not write this statement down in these words in the notes she contemporaneously took during her evaluation of Plaintiff.
Medlin explained that because she took her notes contemporaneously, she did not record Plaintiff’s statements verbatim.
A review of Medlin’s notes from her evaluation of Plaintiff shows that contrary to ULS’ position, Medlin did make a notation indicating that Plaintiff’s suicidal ideation—which she had reportedly not experienced for a long time—was caused by the deposition. Moreover, in her sworn testimony Medlin averred that Plaintiff explicitly stated that she experienced suicidal ideation because, in Plaintiff’s opinion, she was asked victim-blaming questions by ULS’s counsel. Medlin was able to recall the flavor of some of these questions, which were, according to Plaintiff, questions that essentially asked why she did not resist if she was assaulted. Given that Medlin has sworn that she was directly told by Plaintiff that her deposition caused her suicidal ideation to return, the Court held that Medlin’s inclusion of the statement in her expert report is the antithesis of “fundamentally unsupported.”
Moreover, Medlin directly opined that the clinical significance of Plaintiff’s statements was not that uncouth actions on behalf of ULS’s counsel were the cause of her feelings—Medlin could not opine to the veracity of this—but that Plaintiff’s feelings from and processing of the deposition were “really reflective of her emotional state and how fragile she is.” The Court held that this opinion appeared to be squarely within Medlin’s expertise and will not be excluded at this time.
Held
The Court denied Defendant Board of Supervisors of the University of Louisiana System’s motion in limine and Daubert motion to exclude or limit the testimony of Plaintiff’s expert witness Julie Medlin.
Key Takeaway:
Medlin made a notation indicating that Plaintiff’s suicidal ideation—which she had reportedly not experienced for a long time—was caused by the deposition. Plaintiff was asked victim-blaming questions by ULS’ counsel. Medlin was able to recall the flavor of some of these questions, which were, according to Plaintiff, questions that essentially asked why she did not resist if she was assaulted.
Medlin concluded that Plaintiff’s feelings from and processing of the deposition were “really reflective of her emotional state and how fragile she is.” The Court held that this opinion appeared to be squarely within Medlin’s expertise.
Case Details:
Case Caption:
Doe V. Board Of Supervisors Of The University Of Louisiana System Et Al
Plaintiff Arthur Williams (“Plaintiff”) filed this action against Defendants East Meadow Union Free School District, Matthew Melnick, Scott Eckers, Alisa Baroukh, Eileen Napolitano, Joseph Parisi, Marcee Rubenstein, Melissa Tell, Dr. Kenneth Card, and Dr. Patrick Pizzo (collectively, “Defendants”), alleging discrimination based on race, color, and age, as well as a hostile work environment and retaliatory actions.
The Plaintiff, a former employee of East Meadow Union Free School District, alleged that the Defendants discriminated against him based on his race and age and created a hostile work environment during his employment. In 2016 Defendant Patrick Pizzo, District Assistant Superintendent for Business and Finance, encouraged Plaintiff to apply for a position as Assistant to the Superintendent for Administration and Special Projects, for which he was subsequently hired. Despite his superior performance in that role, Plaintiff claimed that he was treated differently than his white counterparts and was subjected to excessive scrutiny and performance evaluations.
Following the Superintendent’s retirement, Pizzo made discriminatory comments on account of Plaintiff’s age and race and such conduct worsened upon Plaintiff attempting to report the conduct. Pizzo placed Plaintiff on a performance improvement plan, and ultimately Pizzo terminated Plaintiff from his position.
Discovery deadlines were extended numerous times for a host of reasons throughout the protracted history of this case. Following a status conference on July 10, 2024, the dates were extended so that expert in chief reports were due no later than July 15, 2024, rebuttal reports were due no later than September 11, 2024, and the end date of all expert discovery was October 2, 2024. The parties were forewarned that “[t]his will be the final extension of discovery dates and deadlines.”
Final Discovery Deadline Violation
Dr. Michael J. Vernarelli, Plaintiff’s forensic economist expert submitted his initial report on August 16, 2022, and, following his deposition, produced his supplemental report on October 14, 2024. Similarly, Dr. Darlene Powell Garlington , a clinical psychologist, submitted her initial report on July 12, 2024, was deposed by Defendants on October 2, 2024, and then submitted a supplemental report on November 6, 2024. It should be noted that both expert reports were served after the final discovery deadline.
Defendants filed a motion to strike both supplemental reports under Federal Rule of Civil Procedure 37, claiming they were not only untimely but also went beyond the permissible scope of supplemental reports. Plaintiff filed timely opposition to the motion on December 23, 2024.
Economics Expert Witness
Michael J. Vernarelli is a forensic economist and a noted academic. He has significant experience consulting with Plaintiff and Defense attorneys, performing appraisals of loss of lifetime earnings and economic value in cases of wrongful death, personal injury, age discrimination, and equitable distribution in addition to providing expert testimony.
Darlene Garlington is a nationally-recognized, licensed clinical psychologist, certified school psychologist, and media psychologist. She is a renowned author of eleven books which focus primarily on building resilience, parenting, family dynamics, spirituality, multiculturalism, co-parenting, male-female relationships and diversity.
Vernarelli’s initial and supplemental reports were prepared to calculate the lost back pay and front pay for Plaintiff as a result of his allegedly wrongful termination.
On October 14, 2024, Vernarelli amended his initial report, which he had submitted on August 16, 2022. In his amended expert disclosure, Vernarelli explained that during his deposition, he realized that he needed to deduct Plaintiff’s Social Security benefits as mitigating income for both lost back pay and lost front pay through Plaintiff’s projected retirement date. He admitted to making a “big oversight” and discovered “an error” in not taking into account these benefits in calculating either back pay or front pay. Vernarelli acknowledged that his calculation method was flawed because he did not account for the fact that this is a civil rights/discrimination case and not a personal injury case where social security benefits ordinarily are not an offset until post-verdict.
Moreover, Vernarelli failed to, but now admits he needed to, account for the higher Social Security benefits Plaintiff would receive upon turning 70—his projected age of retirement. As Vernarelli stated, this meant Plaintiff’s pre-retirement damages should be lower while his post-retirement damages should be higher. Indeed, Vernarelli initially concluded Plaintiff was entitled to lost earnings (back and front pay) of $892,308 and lost pension benefits (front pay) of $296,475. Conversely, in his amended report, after taking into account the Social Security benefits, Vernarelli determined Plaintiff’s lost earnings (back and front pay) should be $702,848 while his lost pension benefits (front pay) should be $545,192, thereby increasing the total damage assessment by $59,257.00.
The Garlington Reports:
Garlington’s initial report, submitted on July 12, 2024, was based on a psychological assessment of Plaintiff’s mental and emotional well-being. In this report, Garlington concluded that Plaintiff suffered from Post-Traumatic Stress Disorder (PTSD) with co-occurring depression and anxiety, referencing bouts of low confidence and cognitive difficulties like inability to focus or recall events. Garlington added that PTSD is a “disease of non-recovery,” and concluded that symptoms “do not dissipate or become manageable to be able to function as the individual did prior to the trauma.”
On November 6, 2024, Garlington submitted an amended report after reviewing additional medical records provided by Plaintiff. These records included findings from Dr. Abraham Glasman, a neurologist who began treating Plaintiff in 2022, and Dr. Christine Weber, who conducted a neuropsychological consultation with Plaintiff in August 2022. Glasman diagnosed Plaintiff with “mild cognitive impairment,” and eventually updated it to “dementia with unspecified severity without behavioral disturbance, psychotic disturbance, mood disturbance and anxiety.” Weber diagnosed Plaintiff with “unspecified dementia with behavioral disturbance” after noting a slow and continuous progression of cognitive decline and corresponding symptoms.
Garlington concluded that Plaintiff had developed Complex PTSD (CPTSD), which she attributed to the ongoing nature of his traumatic experiences.
The Parties’ Arguments
Argument by Defendant
Defendants argued that both the supplemental reports should be struck due to their untimeliness. This case is in the Daubert and summary judgment briefing stage, thus reopening discovery on these experts’ new information would prejudice Defendants through increased costs and delays. Moreover, Vernarelli had ample opportunity to “update and revise” his initial findings as he had access to Plaintiff’s financial information for calculating damages, specifically Social Security damages, yet has failed to indicate why he did not revise his initial report sooner. Furthermore, Defendants posited that Vernarelli “significantly altered his prior damages assessment” by lowering Plaintiff’s pre-retirement damages while increasing post-retirement damages.
With respect to Garlington, Defendants argued that she “drastically revised” her conclusions after reviewing Plaintiff’s prior medical and psychological treatment records. In other words, her supplemental report introduced entirely new theories on which Defendants have had no discovery at all. With the new diagnosis, Defendants claimed that the scope of the first report expanded and is now inconsistent with the initial report.
Argument by Plaintiff
Plaintiff contended that the supplemental reports were a direct result of information raised at the experts’ respective depositions, ones scheduled for the last and second to last day of expert discovery.
Plaintiff specifically argued that Vernarelli’s supplemental report was in direct response to his realization during his deposition that his Social Security calculation was “not fully accurate.” Moreover, as alleged, his initial report did not account for the higher Social Security benefits Plaintiff would have received upon retirement at 70 years old. Such a drastic change in damages, as Plaintiff contends, “is a reflection of the accurate calculations.” Similarly, as argued, Garlington amended her report to provide a “fair and accurate depiction of Plaintiff’s psychological state” after learning, during her deposition, of prior medical reports diagnosing Plaintiff with dementia.
Analysis
Courts “will not admit supplemental expert evidence following the close of discovery when it expounds a wholly new and complex approach designed to fill a significant and logical gap in the first report.” To allow such new evidence to be presented would undermine the purpose of the discovery rules, circumvent the discovery schedule that was ordered by the Court, and prejudice a Plaintiff.
a. Vernarelli’s Report
Vernarelli, though his amended report sought to clarify an “inaccurate” calculation, nothing in the record indicates that the Social Security damages were “unknown or unavailable” to him. In fact, Vernarelli had access to all of Plaintiff’s financial information, including Social Security damages, when he formed his initial report. Additionally, Plaintiff sought to submit Vernarelli’s supplemental report in order to correct his flawed approach to his damages calculation. At bottom, the Court held that Vernarelli’s inaccurate damages calculation resulted from his utilization of a damages calculation tailored towards personal injury cases, not civil rights or discrimination cases. Having chosen to utilize an incorrect methodology in calculating damages, as Vernarelli has done here, does not warrant admitting a supplemental report aimed at correcting that flawed method.
b. Garlington’s Report
Garlington offered several new diagnoses in her amended report, like CPTSD and dementia, that stretched far beyond the scope of her conclusions enunciated in her initial report. The Court held that Garlington’s supplemental report offers new medical opinions and conclusions, rather than clarifying or elucidating the conclusions in her original report.
In considering whether to preclude supplemental experts reports under Federal Rule 37(c)(1), courts, in exercising their discretion, usually consider the following four factors:
The Party’s Explanation for the Delay in Advancing the New Evidence
Importance of the Precluded Evidence
Prejudice Suffered by the Opposing Party
Possibility of a Continuance
i. The Party’s Explanation for the Delay in Advancing the New Evidence
In conclusory fashion, Plaintiff stated that Vernarelli realized the Social Security benefits needed to be deducted and that he did not take them into account despite the fact that Vernarelli had access to this financial information when he formed his initial report. As to Garlington, it is argued that she did not know about the other expert’s reports before she was deposed, namely because Plaintiff allegedly withheld medical information from her. The Court noted that Garlington had numerous opportunities to ascertain this information as the discovery schedule was extended at several different points during this almost four-year litigation.
Plaintiff offered nothing to the Court explaining why Garlington could not obtain this new evidence before examining Plaintiff herself, or why Vernarelli did not account for Social Security damages in his initial report before discovery closed.
ii. Importance of the Precluded Evidence
The reports were important as each were crucial to different elements of Plaintiff’s damages. The Court recognized that evidence affecting even a relatively small portion of total damages could be sufficiently important to weigh against preclusion which is why this factor favors admitting Vernarelli’s report. Moreover, relevant to Garlington, previously conducted medical examinations and subsequent findings were important because they formed the basis for a change in diagnosis.
iii. Prejudice Suffered by the Opposing Party
The case was approaching four years since its commencement on June 11, 2021. Allowing these supplemental reports would necessitate reopening expert discovery, potentially leading to further depositions, reports, and motion practice, thereby resulting in increased time and resources to an already lengthy litigation nearing its end. The Court found this factor heavily favored preclusion keeping in mind the purported prejudice Defendants stood to suffer.
iv. Possibility of a Continuance
The Court held that a continuance was not appropriate as the case has been ongoing for almost four years, other discovery motions have been filed in addition to the current motion to strike, and discovery deadlines, particularly as to experts, have been continuously extended.
In sum, the Court excluded the supplemental reports offered by Vernarelli and Garlington.
Held
The Court granted Defendants’ motion to strike the supplemental expert reports of Michael J. Vernarelli and Darlene Powell Garlington.
Key Takeaway:
Vernarelli noted that his calculation method was wrong because he did not account for the fact that this is a civil rights/discrimination case and not a personal injury case where social security benefits ordinarily are not an offset until post-verdict. Similarly, Garlington’s revised report, which introduced new diagnoses of CPTSD and dementia, was deemed improper because it went beyond her initial psychological findings. The Court applied a four-factor test, considering the delay in submitting the reports, their importance to Plaintiff’s damages, the prejudice to Defendants, and the unavailability of a continuance. Ultimately, the Court ruled that allowing the reports would unfairly extend the litigation, increase costs, and introduce new, unvetted theories, thereby prejudicing the Defendants.
Case Details:
Case Caption:
Williams vs. East Meadow Union Free School District Et Al
Docket Number:
2:21cv3310
Court:
United States District Court for the Eastern District of New York
On October 25, 2024, Petitioner Prasanna Sankaranarayanan filed a petition seeking the return of the parties’ minor son, S.A., to his habitual residence. The petition claims that Respondent Dhivya Sashidhar unlawfully took S.A. from Singapore to the United States on October 14, 2024. On November 1, 2024, Sashidhar was served with the summons and complaint in Redmond, Washington.
Hague Convention cases are typically expedited, with a six-week resolution period recommended. In this case, the Court held a telephone conference with the parties on November 22, 2024, and scheduled an evidentiary hearing for January 6, 2025.
After the conference, the Court issued a scheduling order that outlined deadlines for filings and disclosures, as proposed by the parties. However, the parties later disagreed on whether the deadlines applied to both sides.
On December 27, 2024, Sashidhar filed a motion to exclude Petitioner’s psychology expert witness, Peter Favaro. Sashidhar argued that Sankaranarayanan had violated the scheduling order by disclosing the expert witness after the deadlines for such disclosures had passed.
Psychology Expert Witness
Peter Favaro is a psychologist licensed in the state of New York and has been in private practice since 1986. His area of expertise is psychology within court-related matters. Since 1986, he has been privately hired or court-appointed to thousands of cases to provide evaluation and expert opinion in matters involving domestic violence, custody disputes, and child abuse. He also offers court-related services such as supervised visitation, family mediation, anger management, family therapy, civility training, and parenting coordination. Additionally, he has been appointed or hired on cases involving the 1980 Hague Child Abduction Convention.
In its motion, the Respondent sought to exclude the testimony and report of Peter Favaro, Petitioner’s psychology expert witness.
On December 10, 2024, Petitioner’s counsel emailed Respondent’s counsel to reveal that they had retained Favaro as a rebuttal expert. However, Petitioner had not disclosed Favaro in their initial filings. Following this, Respondent arranged for the child to meet with Favaro on three consecutive days for an evaluation.
Respondent argued that Favaro should be considered an affirmative expert, not just a rebuttal expert, as Petitioner claimed. Respondent pointed to several factors to support this argument:
The report’s title did not suggest it was a rebuttal report
The content included definitive conclusions, and
The opinions went beyond simply addressing the Respondent’s expert reports.
In fact, according to the Respondent, Favaro’s report claimed that the Respondent may have been exerting undue influence over the child and potentially mistreating the child.
Additionally, Respondent asserted that the disclosure of Favaro’s report on December 23, 2024, was untimely and caused significant prejudice. The late disclosure left Respondent with insufficient time to retain a rebuttal expert to challenge Favaro’s conclusions. Furthermore, Respondent was unable to depose Favaro before the Court’s deposition deadline, further hindering its ability to respond effectively.
2. Petitioner’s Position
Petitioner argued that they complied with the Court’s scheduling order, as the dates and language were meant for Respondent to disclose experts and serve expert reports. Petitioner opposed the motion to exclude, stating that the order did not set specific dates for Petitioner’s affirmative or rebuttal experts. Therefore, Petitioner claimed they had not missed any deadlines.
Petitioner further maintained that Favaro was solely a rebuttal expert, a child forensic psychologist retained to address Respondent’s affirmative defenses of grave risk and mature child. Petitioner emphasized that Favaro’s report was properly disclosed on December 23, 2024.
B. Analysis
1. The Scheduling Order
The Court needed to determine whether the expert disclosure deadline applied to both parties. The parties interpreted the scheduling order differently. The order required Respondent to serve expert disclosures by December 2, 2024, and initial expert reports by December 9, 2024. However, the order did not specify deadlines for Petitioner’s affirmative expert disclosures. It only mentioned that both parties were to serve rebuttal expert reports by December 20, 2024.
The minute entry accompanying the order outlined the schedule, including expert disclosures, initial reports, and rebuttal reports, but it did not address the timing for Petitioner’s disclosures. The entry and the order were silent about rebuttal expert disclosure.
Petitioner’s attempt to distinguish between the scheduling order’s text and the minute entry was viewed as an attempt at gamesmanship. The Court found the minute entry to be an integral part of the order. If Petitioner found any confusion, they could have sought clarification instead of using the discrepancy for tactical advantage. The Court found the order’s deadlines to be clear and applicable to both parties.
Petitioner’s claim that they did not know if experts were needed after December 2, 2024, was deemed disingenuous. During the November telephone conference, Petitioner’s counsel repeatedly discussed experts. Respondent’s counsel had also indicated that an expert had been retained and was ready for disclosure.
The Court concluded that the expert disclosure deadline applied equally to both parties. Petitioner was aware of Respondent’s expert well before the disclosure deadline, as discussed in the telephone conference. The Court then considered the disclosures for both affirmative and rebuttal experts.
1. Affirmative Expert Testimony
Although Petitioner argued that all of the testimony was purely rebuttal, the Court was not fully convinced. The 20-page expert report was detailed and appeared to offer opinions and conclusions beyond those necessary for rebutting the affirmative defenses. For instance, Favaro’s opinion that Respondent’s “parental gatekeeping” amounted to maltreatment of the child did not address the grave risk or mature child defenses. As a result, the Court determined that the scope of Favaro’s report went beyond rebuttal testimony. Therefore, Petitioner had untimely disclosed Favaro as an affirmative expert witness.
2. Rebuttal Expert Testimony
Since the scheduling order did not specify deadlines for disclosing rebuttal experts, the Court considered the timeframes typically outlined in the Federal Rules of Civil Procedure. According to these Federal Rule of Civil Procedure 26(a)(2)(D)(ii), a rebuttal expert may be disclosed within 30 days after the other party’s expert disclosure, provided the evidence is intended solely to contradict or rebut the other party’s evidence on the same subject. However, this guideline offered limited guidance in this case due to the tight deadlines in expedited Hague Petition cases. Given the silence in the scheduling order and the inapplicability of the Federal Rules, the Court turned to other authorities to resolve the issue.
Persuasive cases from this District and elsewhere suggested that the party with the burden of proof, in this case, the party asserting an affirmative defense, should disclose its expert testimony before the opposing party discloses an expert to rebut it. The Court referenced several cases supporting this approach.
Based on this guidance and the lack of clarity in the scheduling order, the Court concluded that Petitioner’s disclosure of Favaro on December 10, 2024, shortly after Respondent served affirmative expert reports, was appropriate. Therefore, the Court determined that Petitioner had timely disclosed Favaro as a rebuttal expert.
3. Sanctions
Petitioner has failed to demonstrate that disclosure for any affirmative testimony was substantially justified or harmless. To the extent Favaro’s opinions exceed the scope of Respondent’s affirmative defenses, the late disclosure is harmful to Respondent’s ability to prepare for the evidentiary hearing. The Court will not infer that the violation is harmless from Respondent not deposing one expert to be definitive that Respondent would not have deposed Favaro if properly disclosed as an affirmative expert witness.
Similarly, in light of the lengthy discussions about experts during the telephone conference, Petitioner cannot reasonably maintain that the knowledge about experts did not arise until December 2, 2024. Therefore, the Court concluded that sanctions are warranted because Petitioner has not shown that the discovery violation was substantially justified or harmless.
The Court observed that Favaro’s testimony is important to resolving this matter on the merits, but the Court still finds that sanctions are warranted in this matter. Accordingly, the Court will limit Dr. Favaro’s testimony and opinions in the report solely to rebuttal opinions. “[A] rebuttal expert cannot offer evidence that does not contradict or rebut another expert’s disclosure merely because [the expert] also has also offered some proper rebuttal [evidence].”
Held
The Court granted in part and denied in part Respondent’s motion to exclude Petitioner’s expert witness Peter Favaro’s testimony.
It excludes any of Favaro’s testimony or portions of the report that exceed the scope of rebuttal testimony for Respondent’s affirmative defense.
The Court directed Petitioner to provide Respondent an articulation of Favaro’s rebuttal testimony by January 4, 2025 at 12:00 pm (PST).
Key Takeaway:
Portions of Peter Favaro’s report exceeded the scope of permissible rebuttal testimony and the Court deemed the disclosure of his affirmative expert opinions untimely. While the Court accepted Favaro’s rebuttal testimony, it excluded his opinions on matters unrelated to the grave risk or mature child affirmative defenses—such as allegations of “parental gatekeeping” and maltreatment.
Case Details:
Case caption:
Sankaranarayanan V. Sashidhar
Docket Number:
2:24cv1745
Court:
United States District Court for the Western District of Washington
Defendant Adrian Garcia was charged in a three-count indictment for an alleged carjacking that occurred on May 22, 2022:
Carjacking
Using and carrying a firearm during and in relation to a crime of violence, and possessing a firearm in furtherance of such crime, and discharging said firearm
Being a felon in possession of a firearm and ammunition.
The Government stated it would present evidence showing the offender possessed a firearm, used it during the carjacking, and discarded it while fleeing. Police later recovered the firearm at the scene.
The Government retained firearms and toolmark expert witness Erich Smith. Smith examined a spent cartridge case found at the carjacking scene and a nearby 9mm pistol. He determined that the cartridge case was fired from the recovered pistol. Smith followed the E3CV methodology, which stands for evaluation, classification, comparison, conclusion, and verification. This method is recognized by the Association of Firearm and Toolmark Examiners (AFTE). After a challenge under Rule 702 and Daubert, this Court permitted Smith to testify.
To rebut Smith’s testimony, Defendant retained psychology expert witness, Nicholas Scurich, Ph.D., who specializes the evaluation of forensic firearm/toolmark examination. Now, the defense intended to use Scurich’s testimony to impeach or rebut Erich Smith’s testimony.
To begin with, Scurich was supposed to testify regarding low repeatability and reproducibility of conclusions by firearm/toolmark examiners in validation studies. Moreover, to the extent Smith relies on validation studies in his testimony, Scurich may testify to fundamental design flaws in the studies regarding the sampling of examiners and materials, problem difficulty and bias, missing data, and inconclusive responses. Finally, Scurich will rebut Smith’s testimony by testifying about reasons for growing skepticism by scientists in the field.
Psychology Expert Witness
Nicholas Scurich is a quantitative psychologist with a PhD in Psychology from the University of Southern California. His training included courses on advanced research methods and advanced statistical methodology. He currently works as a professor at the University of California at Irvine, where he is the chairman of the psychology department. Scurich teaches graduate courses in advanced research methods and forensic assessment. Moreover, he has authored more than 75 peer-reviewed journal articles, book chapters, law review articles, technical reports, and conference proceedings.
The Government moves to exclude Scurich’s testimony for multiple reasons. The Government argued that the Notice is too broad and did not comply with Federal Rule of Criminal Procedure 16. It also contends that Scurich’s testimony should be excluded under Federal Rule of Evidence 702 because Defendant has not established that Scurich is qualified or that his opinions are reliable, relevant, or helpful to the jury. According to the United States, allowing his testimony would undermine the Court’s gatekeeping function under Daubert and confuse the jury. For the reasons explained herein, the Court disagrees with the Government.
A. Rule 16 does not justify the exclusion of Scurich’s testimony
The United States argues that Defendant’s Notice does not contain “a complete statement of all opinions” that Scurich will offer, but instead too broadly lists topics, rather than substantive opinions. It asserts his proposed testimony should be struck on this ground alone.
While Defendant’s Rule 16 summaries are relatively cursory, the record contains substantial discussion of Dr. Scurich’s opinions based on his published articles.
Also, Defendant provided a list of the 25 studies that Scurich is familiar with that informs the Government about which validation studies he may testify. Moreover, any prejudice from the lack of more specificity in the Notice was cured at the hearing. Basically, the purposes of Rule 16 include minimizing surprise from unexpected expert testimony and allowing a party to prepare for cross-examination and presentation of opposing experts.
Therefore, the Court held that Rule 16’s purposes are met via the disclosures in the record and the opportunity the United States had to cross-examine Scurich at the Daubert hearing. Basically, the United States asked Scurich specific questions as to each of the five enumerated opinions listed in the Notice and gained additional detail as to each.
B. Defendant satisfied his burden under Rule 702 and Daubert to establish Scurich’s qualifications and the relevance and reliability of his opinions
Now, the Federal Rule of Evidence 702 governs the admissibility of expert testimony. An expert must be qualified by knowledge, skill, experience, training, or education, and their testimony must be based on sufficient facts, reliable principles, and a reliable application of those principles to the facts of the case.
The Court finds that Scurich is qualified as an expert in research design, the evaluation of research design, data analysis including statistical analysis, and the evaluation of data analysis.
1. Scurich is qualified as an expert.
According to the Government, Scurich is not qualified in the field of firearm and toolmark identification evidence to render an opinion about the evidence in this case. Scurich, however, is not offering an opinion about the firearm and toolmark analysis Smith conducted in this case. Instead, the Court held that his testimony will be more generally about the research on the reliability of the field of firearm and toolmark identification.
Although he does not have experience and training in firearms and toolmark casework, he has extensive experience and training in research methods and design.
2. Scurich’s opinions are reliable.
Moreover, the Court held that he has extensively reviewed the literature and research studies testing the firearms and toolmark field and analyzed the raw data therein. He applied reasoning to reach his conclusions based on his specialized knowledge in research design and statistical analysis, his education, and his training.
3. Scurich’s opinions are relevant and helpful to the jury.
The United States next argued that, because the issues at trial are not about research designs or the best way to analyze statistical data, the evidence is not relevant and will confuse the jury.
The Court held that Scurich’s testimony will aid the jury in understanding the issue of the reliability of firearms and toolmark forensic analysis and help the jury evaluate the weight to afford the expert testimony of Smith.
4. The Court will permit Scurich to offer expert testimony.
Defendant has demonstrated that Scurich is qualified, his opinions are reliable, and his testimony is relevant. Therefore, the Court will allow Scurich to testify as an expert witness at trial.
Held
In conclusion, the Court denied the United States’ motion to exclude the testimony of psychology expert witness Nicholas Scurich.
Key Takeaway:
Scurich has sufficient education, training, experience, and knowledge to qualify as an expert in research design, the evaluation of research design, data analysis including statistical analysis, and the evaluation of data analysis to offer the opinions. Also, he has acquired familiarity with the research studies and underlying data that the firearm and toolmark examiners rely on to support their assertion that the AFTE theory of identification is a reliable method for comparing cartridge cases and bullets.
Case Details:
Case Caption:
United States V. Garcia
Docket Number:
1:22cr1171
Court:
United States District Court for the District of New Mexico
Wave Neuroscience alleged that Brain Frequency infringed four patents in this case. The vast majority of claims asserted in this litigation against Brain Frequency are method claims that relate to the performance of a medical procedure by medical practitioners on patients. Defendants claimed that Brain Frequency is immune because it is a “related health care entity” that merely facilitates the performance of those accused medical activities by medical practitioners.
Section 287(c) of the Patent Act, known as the Physician’s Immunity Statute, mandates an exception to infringement claims asserted under Section 271 (a) and (b) of the Patent Act. In cases where infringement allegations involve medical practitioners or physicians performing medical procedures on patients in violation of an asserted method claim, these parties are immune from all remedies associated with the alleged infringement.
The Plaintiffs contended that Brain Frequency is neither a medical provider nor a facility where medical providers practice medicine.
Wave filed a motion to strike Brain’s expert report of Dr. Jared Dempsey under Federal Rule of Evidence 702. The Court granted Wave’s motion “without prejudice to the extent Brain can cure the deficiencies with Dempsey’s qualifications.” Two weeks later—on October 17, 2024—Brain filed a “Notice of Cure.” This included a revised declaration by Dempsey which, among other things, detailed his involvement in the Study. Brain also filed, under seal, the study itself. Brain contended that this information cured the deficiencies.
Psychology Expert Witness
Jared P. Dempsey, Ph.D. serves as Chief Scientist at Trac9 Informatics. Dempsey is actively involved in neurological and physiological research in addiction.
Recent publications include preliminary evidence for a biological marker of addiction recovery, non-conscious emotional response to drug stimuli, and the influence of social anxiety on addiction treatment.
Dempsey has also served as an expert reviewer for the Journal of Motivation and Emotion, Psychopharmacology, Journal of Psychopathology and Behavioral Assessment, American Journal on Addictions, Addiction, Psychiatry Research, European Psychiatry, Nicotine and Tobacco Research, and the Journal of Studies on Alcohol and Drugs.
Dempsey was also actively involved in the development of a comprehensive symptom tracking and outcome data collection tool for addiction treatment, Trac9.
Initially, the Court held that Dempsey did not have the proper qualifications because there was insufficient evidence to demonstrate he had “advanced training or experience” in Transcranial Magnetic Stimulation (“TMS”). The Court found that the reference to a single research project related to TMS from May 2022–April 2024 (the “Study”) on Dempsey’s curriculum vitae, without further information, did not establish that he had a “hands-on or technology-facing” role.
However, Dempsey attests that he directly participated in the treatment of subjects using TMS and EEG technology, that he outlined the precise treatment protocols used in the study, and that he participated in the actual application of TMS using EEG and certain software to gauge the effects. This appeared to be a “forward-facing role.” Dempsey further states he has worked on the Study since 2022 for over 1,000 hours, along with months of preparatory work.
Wave’s Objections
The Court held that Wave’s two objections are unavailing. First, Wave maintained that Dempsey is not qualified to opine as a person of ordinary skill in the art (“POSITA”). Its primary qualm is that Dempsey does not explain “the nature of actual TMS treatments provided.” But the Study itself explains the nature of the treatments. And the Court does not see how the “nature of the treatments,” or what the TMS treatments were targeted to, would affect whether Dempsey is a POSITA. Wave’s own proposed definition of a POSITA is not cabined to a specific type of TMS treatment.
Second, Wave also claims that it will suffer undue prejudice if Brain is granted relief. The Court does not see how Dempsey’s testimony, if any, would prejudice Wave. Wave has been on notice of Dempsey’s testimony since at least May 2024 when Brain filed its opening claim construction brief. The October 2, 2024 status conference proceeded under the assumption that Dempsey would testify at the Markman hearing. The Court explicitly granted Brain an opportunity to cure the deficiencies in its designation. The Court added that any assumption on Wave’s part that Dempsey’s conclusions or testimony would be permanently excluded was unwarranted.
Because Brain has cured the deficiencies in Dempsey’s designation as a POSITA, the Court vacated the order granting Wave’s motion to strike. Wave may, of course, seek appropriate discovery, including an abbreviated deposition of Dempsey, to inquire into issues that impact the credibility and weight of his testimony (e.g., his background, experience, and any other appropriate matters). Such discovery will be sufficient to cure any “prejudice” that Wave has suffered in the past three weeks.
Held
The Court held that the that the order granting motion to strike Brain Frequency’s expert Jared Dempsey is vacated, and Wave’s motion to strike Dempsey is denied.
Key Takeaway:
Initially, the Court held that Dempsey did not have the proper qualifications because there was insufficient evidence to demonstrate he had “advanced training or experience” in Transcranial Magnetic Stimulation (“TMS”). Two weeks later, Dempsey submitted a revised declaration which, among other things, detailed his involvement in the Study. The Court found that Dempsey directly participated in the treatment of subjects using TMS and EEG technology, that he outlined the precise treatment protocols used in the study, and that he participated in the actual application of TMS using EEG and certain software to gauge the effects.
Case Details:
Case Caption:
Wave Neuroscience, Inc. V. Brain Frequency Llc Et Al
Plaintiff Matthew Alan Hearn brought certain claims against the Defendants City of Bakersfield, police detective Christian Walter Hernandez V, police sergeant Nathan A. Anderberg, and probation officer S. Jauch, collectively “City Defendants,” and County of Kern, collectively “County Defendants”. He based these claims on their actions during a law enforcement encounter on September 27, 2020, in Bakersfield. He alleged six causes of action: (1) Battery; (2) Intentional Infliction of Emotional Distress; (3) Negligence; (4) Violations of California Civil Code Section 52.1 (Bane Act)-Civil Rights Violations; (5) Excessive Force; and (6) Unreasonable Search and Seizure.
Plaintiff retained psychology expert witness, Daniel S. Rubiaco to conduct a psychological assessment and behavior analysis of him during the incident. Defendants filed a motion to preclude Daniel S. Rubiaco from testifying under Rule 702.
Psychology Expert Witness
Daniel S. Rubiaco, Psy.D., LCSW, is a licensed psychologist practicing in a private setting in Bakersfield, CA. He graduated from The Chicago School of Professional Psychology – Los Angeles Campus in September 2017, earning a Doctor of Psychology in Applied Clinical Psychology. Additionally, he obtained a master’s degree in Social Work from California State University, Bakersfield, in 2007. Earlier, he completed two undergraduate degrees in Sociology and Communications at the University of California, Davis, in 2003.
His practice focuses on supporting adolescents, young adults, and professionals dealing with stress, anxiety, depression, posttraumatic stress disorder (PTSD), and major conflict. He has significant experience working with victims of violent crimes, guiding them through the complexities of the criminal court process.
Defendants argued that Rubiaco’s proposed testimony would not assist the jury in understanding the evidence or determining any key facts. They noted that he did not examine or interview Plaintiff, nor did he review his deposition. Instead, his testimony focused on Plaintiff’s behaviors, suggesting they “made logical and reasonable sense.”
Defendants referenced Federal Rule of Evidence 702 and relevant case law regarding the burden of proving admissibility. They emphasized the district court’s role as the “gatekeeper” for expert testimony, highlighting the necessity of “good grounds” for expert opinions.
Furthermore, Defendants contended that the jury needed to decide whether they conducted an unlawful search and seizure of Plaintiff’s vehicle and whether they used unreasonable force during the arrest. They maintained that these matters did not require the opinion of a psychologist like Rubiaco.
B. Plaintiff’s Argument
Plaintiff agreed with some of the case authorities cited by the Defendants but disagreed with their conclusions. He contended that Rubiaco would help the jury understand Plaintiff’s behavior during the arrest and detention, which he argued was abnormal. Plaintiff stated that Defendants could cross-examine Rubiaco on this matter.
C. Defendant’s Reply
In their reply, Defendants claimed that Plaintiff’s opposition failed to show how Rubiaco’s review of his alleged personality was relevant to the jury’s consideration. They cited case law and Federal Rules of Evidence 401, 402, 403, and 404, which address relevance, weighing of equities, and the inadmissibility of character trait evidence and its exceptions.
Ultimately, Defendants argued that Rubiaco’s opinions were neither relevant nor admissible, asserting that no exceptions applied to his testimony.
D. Analysis
Defendants sought to exclude Rubiaco’s testimony, focusing on the relevancy aspect. They did not argue that his testimony failed the reliability standard. The Court needed to independently assess whether Plaintiff met his burden regarding both prongs.
Rubiaco acknowledged in his report that he could not perform a clinical diagnosis of Plaintiff. He did not interview or assess Plaintiff directly. Additionally, he had not reviewed Plaintiff’s deposition before finalizing his report due to the absence of a transcript. He planned to amend the report after reviewing the transcript, indicating its importance.
His opinions were based on a limited review of discovery materials, including law enforcement reports, body-worn camera footage, medical records, and two recorded calls. He applied “the Generic Cognitive Model” to assess the Plaintiff’s cognitive structures and beliefs.
The Generic Cognitive Model (GCM) is a psychological framework used to understand how individuals process information and react to experiences. It posits that people have cognitive structures—mental frameworks and schemas—that shape their perceptions, thoughts, and behaviors in response to various situations.
For example, he opined that Plaintiff was “pro-law enforcement” based on two comments made during the incident. He argued that when Plaintiff experienced an activating event, automatic responses categorized information in a way that activated a maladaptive schema. Consequently, he claimed that Plaintiff’s emotional state led to defensive behavior.
Ultimately, the Court found that Rubiaco’s proposed testimony failed both the reliability and relevancy standards under Daubert. Plaintiff did not demonstrate that the Generic Cognitive Model applied reliably, given the lack of direct assessment or comprehensive review of Plaintiff’s history.
Moreover, Rubiaco’s main opinion lacked relevance. Although Plaintiff argued that this testimony would aid jurors, he did not clarify how it would assist in deciding the case. Thus, if admitted, Rubiaco’s testimony would distract jurors and risk confusion, further supporting its exclusion.
Held
The Court granted the Defendant’s motion to exclude the Plaintiff’s psychology expert witness, Daniel Rubiaco.
Key Takeaway:
The Court highlighted that Rubiaco did not directly assess the Plaintiff, failed to submit a comprehensive review of his background, and relied on a limited selection of materials. Additionally, the Court found that Rubiaco’s analysis did not clearly assist the jury in understanding key issues related to the case. Ultimately, the lack of direct engagement with the Plaintiff and insufficient clarity on how his insights would aid the jury led to the exclusion of his testimony.
Case Details:
Case caption:
Hearn v. City of Bakersfield
Docket Number:
1:22cv668
Court:
United States District Court for the Eastern District of California
Plaintiff, Rudolph Mills filed this action against Defendant, Steuben Foods, Inc., alleging employment discrimination based on race after numerous complaints about shocking and wildly inappropriate racial slurs used against him by supervisors and managers.
Defendants moved, pursuant to Fed.R.Civ.P. 16(f)(1)(C), 26(a)(2)(A), (D), 37(c)(1)(C), for an order striking the expert report of Mark D. Lerner, PhD. Alternatively, Defendants requested the Court award Defendants’ expenses which may be incurred to counter Lerner’s opinions, including any costs Defendants incur in connection with taking Lerner’s deposition.
Plaintiff e-mailed Defendants a copy of a Confidential Psychological Report prepared by Lerner who was also expected to testify concerning Plaintiff’s alleged psychological and emotional distress Plaintiff suffered as a result of the alleged discriminatory conduct of Defendants. According to the report, Lerner examined Plaintiff on December 9, 2023 and issued the report on December 10, 2023.
Plaintiff’s opposition is based on Plaintiff’s assertion that a dispute between Plaintiff’s counsel and one of Plaintiff’s other expert which “resulted in [a] delay of production of the expert report” does not warrant striking Lerner’s report and preclusion.
Psychology Expert Witness
Mark D. Lerner, Ph.D. is a clinical and forensic psychologist with over 35 years of experience helping people through challenging times. He sees individuals, couples, and families in his office in Melville, New York, and works with clients virtually online.
Moreover, as chairman and CEO of The National Center for Emotional Wellness, Inc., Lerner provides practical information, training, and support for organizations, corporations, educational institutions, healthcare providers, and emergency responders worldwide.
The Court held that this reason for non-compliance fails to explain why Plaintiff’s counsel failed to secure a different psychological expert, presumably Lerner, prior to the deadline for Rule 26(b)(2) expert disclosure.
To begin with, Plaintiff’s delay is not harmless as failing to strike Lerner’s report and preclude his expert testimony would necessitate granting Defendants an opportunity to secure a rebuttal expert who would need to interview Plaintiff thereby further prolonging the trial. Specifically, Lerner’s testimony would be limited to the question of Plaintiff’s damages, not Defendants’ liability, and, as such, is not critical to Plaintiff’s case. Moreover, the Defendants will be severely prejudiced by having the jury hear unrebutted expert testimony that Defendants’ racial slurs caused Plaintiff to suffer emotional distress.
Finally, the Court saw that Plaintiff also failed to establish good cause required by Rule 16(b), for excusable neglect.
Defendants also requested the Court, pursuant to Rule 37(c)(1)(A), award Defendants’ expenses in connection with taking Lerner’s deposition, or alternatively, pursuant to Rule 16(f) or Rule 37(c)(1)(A), Defendants’ expenses incurred in connection with bringing the instant motion.
The Court decided that responsibility for the late service of Lerner’s report is solely attributable to Plaintiff’s counsel’s complete disregard of the deadline for service of Plaintiff’s expert report. Therefore, such responsibility should be assigned to Plaintiff’s counsel, Seamus P. Barrett, Esq. and the Derek Smith Law Group, PLLC, and not Plaintiff, should the Court award Defendants’ attorneys fees incurred in making the instant motion pursuant to Rule 16(f)(1)(C).
Held
The Court granted the Defendants’ motion to strike and preclude the report of Plaintiff’s expert Mark D. Lerner.
Key Takeaways:
The party that failed to comply with its discovery obligations bears the burden of proving that its failure was both substantially justified. Plaintiff’s delay is not harmless as failing to strike Lerner’s report and preclude his expert testimony would necessitate granting Defendants an opportunity to secure a rebuttal expert who would need to interview Plaintiff thereby further prolonging the trial.
Moreover, harmlessness means an absence of prejudice. However, Defendants will be severely prejudiced by having the jury hear unrebutted expert testimony that Defendants’ racial slurs caused Plaintiff to suffer emotional distress
This case involved various claims arising from the death of SGT, a minor and former student at St. Marys Middle School in the Camden County School District. Plaintiffs alleged SGT died of suicide because of multiple bullying incidents at the school and Defendants’ failures to adequately respond to and address those incidents and asserted claims under the Americans with Disabilities Act (“ADA”) and Georgia law.
Plaintiffs retained a psychology expert, Dr. Sheila Crowell, to opine on the causal chain of stressors leading to SGT’s suicide and SGT’s symptoms of ADHD. In her report, Crowell opined SGT experienced stress as a result of actions and inactions by staff at St. Marys Middle School and the cumulative nature of these stressors exceeded the typical level of stress most children encounter.
Crowell opined there was a clear precipitating event for SGT’s suicide on November 18, 2019. SGT made “origami rockets” for a classmate on November 15, 2019. The classmate threw the origami rockets in the math classroom, and one got stuck in the ceiling. On November 18, 2019, Jackson sent SGT to the “ownership room” for this incident.
Crowell opined this event appeared to have been on the forefront of SGT’s mind on the day he died by suicide. In Crowell’s deposition, she detailed a process called “chain analysis.” “A chain analysis is where you go through the chain of events that led to a person harming themselves.”
Defendants argued Crowell formed her opinions based on information that was narrowly focused on stressors SGT experienced at school, and Crowell did not sufficiently consider stressors outside the school. Defendants asked the Court to exclude Crowell’s opinions.
Psychology Expert Witness
Sheila Crowell is a tenured Psychology Professor at the University of Utah. She has been a licensed and practicing psychologist since 2013. Crowell has received funding from the American Foundation for Suicide Prevention and the National Institutes of Health to better understand and prevent suicide. Crowell has produced 115 peer-reviewed and invited publications, of which 30 publications deal directly with the topic of suicide or self-injury.
Crowell’s Opinions Are Based on Reliable Methodology
Defendants argued Crowell’s methodology was not reliable for two reasons. First, Defendants contended Crowell’s opinions are based solely on deposition testimony that was narrowly focused on stressors SGT may have encountered at school. Defendants argued SGT could have encountered other stressors, including discipline at home, interactions with peers outside of school, and SGT’s relationship with his parents, but Crowell did not consider these additional stressors in forming her opinions. Second, Defendants argued Crowell’s “chain analysis” was merely her subjective opinion.
Crowell’s opinions are based solely on deposition testimony that was narrowly focused on stressors SGT may have encountered at school
Crowell’s report and deposition testimony demonstrated that she reviewed numerous documents to determine which stressors contributed to SGT’s suicide. In addition to depositions from school administrators, Crowell considered SGT’s suicide note, SGT’s suicide video, an interview with SGT’s brother, and Plaintiff Kohn’s deposition.
Crowell’s report and testimony showed that although she considered information about other stressors from outside of school, like SGT’s home life and parental discipline, she determined those stressors were not “proximal stressors” on the day of SGT’s suicide.
The Court did not find that Defendants have shown Crowell’s opinions were improperly based on insufficient information.
Crowell’s “chain analysis” was merely her subjective opinion
The Court held that the Defendants’ second challenge regarding the reliability of Crowell’s chain analysis methodology is also unconvincing.
Crowell has sufficiently explained the connection between her training and experience and her opinion that actions and inactions by staff at St. Marys Middle School likely increased SGT’s vulnerability to mental health struggles and led to SGT’s suicide. Defendants have not shown Crowell’s chain analysis is based on an unreliable methodology.
Crowell relied on her training and experience as a clinical and research psychologist when she performed a chain analysis in this case. Crowell identified several documents she reviewed related to this case, including depositions, a forensic interview, and an academic article focused on youth suicide. After reviewing those materials, Crowell noted there was no evidence of any mental health support for SGT or any efforts to protect him from bullying.
Crowell’s Opinions Will Assist the Trier of Fact
Defendants argued causation is the “[t]he legal issue” in this case, and Crowell’s opinions would not assist the trier of fact in resolving that issue. According to the Defendants, Crowell’s opinions focused only on what happened immediately before the suicide, not long-term stressors, and, therefore, her opinions will not help the jury determine whether and to what extent other events could have contributed to SGT’s death.
Defendants’ contention that Crowell’s opinions will not assist the trier of fact is unconvincing. The Court held that Crowell’s opinions concern the relevant time period for assessing causal factors leading up to a suicide and self-harm generally, and, specifically, concern the proximal stressors that may have contributed to SGT’s suicide. Crowell’s opinions on these topics arise from her specialized training and experience in psychology and assessing risk of self-harm and suicide (with special focus on risks for adolescents). Crowell’s opinions concern a core issue in this case—the cause of SGT’s suicide—and the opinions concern topics likely beyond the understanding of the lay person.
Held
The Court denied the Defendants’ motion to exclude the testimony of Sheila Crowell.
Key Takeaway:
Crowell identified the “ownership room” incident as a clear precipitating event for SGT’s suicide, particularly because the “ownership room” probably had negative historical meaning for SGT. Crowell noted the “ownership room” incident occurred in the context of ongoing academic struggles.
Crowell’s opinions concern a core issue in this case—the cause of SGT’s suicide—and the opinions concern topics likely beyond the understanding of the lay person. Therefore, Crowell’s opinions would be helpful to the trier of fact.
A district judge in Virginia refused to admit the testimony of a psychology expert even though he provided the Court with multiple experimental means to test the validity of the communications in question.
Plaintiff, Kevin Plantan filed a lawsuit arising from his belief that he was wrongfully accused of sexually molesting his minor daughter S.P., an autistic child, and that the allegations made by the child were not really S.P’s words, but rather, that they came about via a method of communication that is not reliable.
Plaintiff claimed Wendy Atkinson, an occupational therapist, was hired by defendant Kelly Smith, his ex-wife and mother of S.P., to “begin using a form of facilitated communication with S.P.” He asserts that during the course of S.P.’s interactions with, inter alia, Defendant Wendy Atkinson, S.P. disclosed that the Plaintiff had sexually abused her when she was six and nine years old.
Plaintiff designated Dr. James Todd (“Dr. Todd”) who opined that Ms. Atkinson “has recklessly disregarded the clear and overwhelming conclusions of the scientific community that facilitated communication is ineffective and dangerous.”
The Defendants filed a motion to exclude Todd’s opinions, arguing that “they are inadmissible for numerous reasons,” including that “the opinions offered are not only an improper attack on the credibility of Atkinson” but also “venture into territory that is off limits to experts.”
Psychology Expert Witness
James Todd is a “professor of Psychology at Eastern Michigan University” and teaches courses on “experimental methodology and basic behavioral principles, including stimulus control and prompting.” Todd earned a Ph.D. in Developmental and Child Psychology and a Master’s Degree in Human Development. His training and experience include “severe, multiple handicaps, including autism.” He has “formally studied facilitated communication and variants of it since about 1991,” including “attending several trainings and didactic workshops and information sessions about facilitated communication given by top authorities in the field.” Todd has “authored or co-authored several articles and chapters” on facilitated communication.
Defendants first argued that Todd is not qualified because “he does not practice in the same or similar” field of occupational therapy, namely habilitation and rehabilitation, as does Atkinson.
Plantan countered that Todd need not be an expert in occupational therapy “to testify that the technique that the Defendants employed . . . is ‘facilitated communication’ and that such method is an illegitimate means by which communication may be assessed for its substantive value.”
Even though Todd presented ample qualification to testify, as a general matter, about what facilitated communication is and how to design an experiment to screen for extraneous variables to determine the validity of the results, Defendants contended that his testimony did not satisfy other aspects of Rule 702, including that which prevents an expert from rendering a legal opinion.
Todd’s Specialized Knowledge Could Assist the Trier of Fact But is Not Presented in a Manner the Jury Can Hear
Despite Todd’s extensive experience in facilitated communication and in measuring the efficacy of various behavioral interventions—especially focused on individuals with autism spectrum disorder, the Court held that Todd’s report consisted of statements that constituted legal conclusions and, rather than helping the trier of fact understand the evidence, risked supplanting the province of the jury.
Todd stated that “Atkinson has recklessly disregarded the clear and overwhelming conclusions of the scientific community.” The Court held that it is unclear whether Todd intended to introduce recklessness as “a legal standard or . . . a legal conclusion” but in either case, this testimony is inadmissible.
Todd’s Opinion Is Not Based on Sufficient Facts or Data
First, Todd did not review the Cornerstone Therapy records regarding Ms. Atkinson’s occupational therapy services with S.P.
Second, Defendants stated that Todd was unaware that S.P. had testified twice in Plantan’s criminal proceedings and did so on at least one occasion with typing assistance provided by an individual wearing headphones who could not hear the questions being asked. Certainly Todd should have considered such events as grounding before he concluded that any typing did not represent S.P.’s own words.
Third, Plaintiff’s counsel acknowledged at oral argument that Todd did not review the depositions of any of the multiple other individuals who assisted S.P. with typing.
Because he read only one day of Atkinson’s two days of deposition testimony and an unspecified “letter,” Todd made assumptions “about the position of S.P.’s fingers on the keyboard, about who put pressure on the keys, about hand positions generally, and about who typed the words at issue,” without sufficient evidentiary grounding.
The Court held that in the absence of actual observation of the typing that he characterizes as facilitated communication, Todd forms his assumptions from his conclusion that facilitated communication is occurring. In other words, Todd’s speculation—derived from his conclusory, albeit expert, observations about the apparent fallacy underlying facilitated communication—are inadmissible with respect to S.P.’s treatment here.
Todd’s Opinion Is Not the Product of Reliable Principles and Methods
Todd rightly observed that the lack of any testing to verify the true author of the communications raises concern. Todd’s report suggested that if he had tested the validity of S.P.’s communications, that test would reveal that S.P. was not the true author. Although Todd articulated principles and methods—such as single-blind and double-blind tests—that may constitute reliable methods by which to discern whether Atkinson engaged in facilitated communication, he failed to actually conduct such tests, “leaving those matters open to speculation.”
Todd’s Opinions Do Not Reflect a Reliable Application of the Principles and Methods to the Facts of This Case
Defendants argued that Todd’s “opinions lack ‘the same level of intellectual rigor that characterizes the practice of an expert in the relevant field’, and that “he fails to explain what facts he considered in forming his opinions.”
Plantan responded by asserting that Todd reliably applied his principles of review as they relate to identifying specific measures used by Atkinson with S.P. and scrutinized those measures according to academic studies.
The Court found that Todd’s opinion did not reflect a reliable application of those principles and methods to the facts of this case.
Analysis Under Federal Rule of Civil Procedure 26 Would Be Duplicative
Defendants asserted that “Todd’s report is deficient under Rule 26” because “Todd provides only a general description of facilitated communication” and “fails to provide any specific information from which the Court could determine what facts or data he considered in arriving at his opinion.”
The Court “has determined that Rule 702, rather than Rule 37(c), is the proper vehicle to address the deficiencies of Todd.”
Having already found in favor of the Defendants under Rule 702 and Daubert, the Court declined to undertake a Rule 26 analysis.
Held
The Court granted the Defendant’s motion to exclude the opinions of James Todd.
Key Takeaway:
Even though Plantan conceded that the reliability of Todd’s testimony could have been reinforced by procedures not undertaken in this case, such as video observation of S.P.’s typing, in-person observation of S.P.’s typing, or experimental tests of the reliability of S.P.’s typing, the Court found that Todd’s testimony was not the product of reliable principles and methods, but rather of ipse dixit based on his experience and insufficient case-specific facts and data. Todd identified multiple experimental means to test the validity of the communications, but he deployed none of them to verify the authorship of S.P.’s typed communications.
