Expert Witness Profiler

Tag: Sanctions

  • Psychology Expert Witness’ Opinion on Parental Gatekeeping Excluded Due to Procedural Violations

    Psychology Expert Witness’ Opinion on Parental Gatekeeping Excluded Due to Procedural Violations

    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

    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.

    Want to know more about the challenges Peter Favaro has faced? Get the full details with our Challenge Study report.  

    Discussion by the Court

    A. The Parties’ Arguments

    1. Respondent’s Position

    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:

    1. The report’s title did not suggest it was a rebuttal report
    2. The content included definitive conclusions, and
    3. 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
    Dated: January 3, 2025
  • Court admits the deficient report of Orthopedic Surgery Expert Witness despite non-compliance with the requirements of Rule 26 but subjects it to lesser sanctions

    Court admits the deficient report of Orthopedic Surgery Expert Witness despite non-compliance with the requirements of Rule 26 but subjects it to lesser sanctions

    Plaintiff Valerie Peterson filed a personal injury lawsuit against Defendant Ross Dress for Less, Inc. in the United States District Court for the Eastern District of Missouri. Peterson alleged that on July 6, 2020, while shopping at a Ross Dress for Less store in Poplar Bluff, Missouri, she was struck by an overloaded shopping cart transported by a Ross’ employee, causing her serious injuries. 

    As per the Case Management Order, the Plaintiff had until July 15, 2023, to disclose expert witnesses. On that date, the Plaintiff’s counsel informed the Defendant’s counsel via email about the intent to name Matthew Gornet as an expert witness, seeking an extension of 45 days to submit  Gornet’s report. The Defendant’s counsel agreed to a 30-day extension. On August 15, the Plaintiff’s counsel notified the Defendant’s counsel of the ongoing delay in receiving Gornet’s report. However, on August 18, the Plaintiff’s counsel finally sent  Gornet’s report to the Defendant’s counsel, accompanied by a link to various medical records of the Plaintiff.

    In his report, Gornet detailed his treatment of the Plaintiff for neck and low back problems, commencing in April 2021, which included two surgeries. He indicated that the Plaintiff would need future treatment for cervical and lumbar spine issues, estimating associated costs. Gornet opined that the incident on or about July 6, 2020, aggravated the Plaintiff’s pre-existing degenerative conditions, basing his opinion on comparative studies, knowledge of similar cases, and a review of relevant medical records.

    The Defendant filed a motion to strike Gornet, citing two main reasons: first, the late submission of the report, provided three days after the agreed 30-day extension period, and second, the report’s alleged failure to include required information under Rule 26(a)(2)(B).

    Orthopedic Surgery Expert Witness

    Dr. Matthew Frederick Gornet, M.D., is a spine surgeon currently employed at St. Louis Spine and Orthopedic Surgery Center. He completed his Bachelor of Arts degree at Washington University. He then attended Johns Hopkins University School of Medicine where he received his Medical Degree. This was followed by a residency program in General Surgery at Johns Hopkins Hospital and then a residency program focused specifically on Orthopedic Surgery, also completed at Johns Hopkins Hospital. Gornet then completed an advanced Spinal Surgery fellowship program at Johns Hopkins Hospital under the guidance of globally renowned spine surgeon Dr. John Kostuik. He is certified by the American Board of Orthopaedic Surgery. 

    Discussions by the Court

    The Court initially addressed the Defendant’s contention that  Gornet’s report should be stricken due to non-compliance with Rule 26(a)(2)(B). The Plaintiff countered, asserting that Rule 26(a)(2)(B) was inapplicable to  Gornet as he was a treating physician, and instead, compliance with Rule 26(a)(2)(C) was sufficient. The Defendant, in its reply, maintained the position that Rule 26(a)(2)(B) applied but added that even if it did not, Gornet’s testimony should be excluded because he was never appropriately disclosed as an expert under any aspect of Rule 26(a)(2).

    Rule 26(a)(2) outlines disclosure requirements for expert witnesses in trial testimony. It distinguishes two categories: (1) experts retained for the case, requiring a detailed report (Rule 26(a)(2)(B)), and (2) other witnesses, who need not provide a report but must disclose the subject matter and a summary of their expected testimony (Rule 26(a)(2)(C)).

    The Eighth Circuit clarified the application of these rules to treating physicians offering expert testimony, emphasizing that if a treating physician forms opinions outside their treatment scope, they are considered retained experts and must adhere to Rule 26(a)(2). The Court, in Johnson v. Friesen, 79 F.4th 939, 943 (8th Cir. 2023), held that such physicians must submit an expert report, not just a summary, as mandated by Rule 26(a)(2)(B). Failure to comply may result in exclusion of the expert’s testimony, as seen in Johnson and other related cases.

    The situation involves Gornet, identified as one of the Plaintiff’s treating physicians, detailing his treatment, including two surgeries. The Plaintiff’s deposition testimony confirms that she was referred to Gornet after physical therapy proved ineffective. Despite establishing Gornet as a treating physician, it’s emphasized that this alone doesn’t determine the applicability of Rule 26(a)(2)(B) to his opinions. The crucial consideration is whether Gornet’s views on the cause of the Plaintiff’s injury and her future treatment needs and costs were formed “in the course of providing treatment,” a legal standard not addressed by either party in their submissions.

    Upon reviewing the record, the Court determined that Gornet’s opinions were, to some extent, formulated outside the course of providing treatment to the Plaintiff. Gornet’s letter was a response to a request from the Plaintiff’s counsel for an “expert opinion and narrative report” concerning the causation of the injuries and future treatment needs. The letter contained specific treatment recommendations and cost estimates for procedures over the next decade, suggesting these conclusions likely did not arise during the course of the Plaintiff’s treatment. Notably, Gornet did not specify when he formed his causation opinion but indicated it was based on various comparisons and reviews. The Court found it more likely that Gornet developed these opinions outside the context of providing treatment, considering the detailed nature of his recommendations, his compensation for the report, and the indication from the Plaintiff’s attorney that Rule 26(a)(2)(B) requirements applied.

    The Court concluded that Gornet formed his opinions outside the course of providing treatment to the Plaintiff, making him subject to Rule 26(a)(2)(B). However, the Court agreed with the Defendant that Gornet’s two-and-a-half-page report did not fully meet the requirements of Rule 26(a)(2)(B).

    First, Gornet’s report lacked the necessary detail regarding the “facts or data considered” in forming his opinions, as mandated by Rule 26(a)(2)(B)(ii). Second, it failed to include any exhibits supporting his opinions, violating Rule 26(a)(2)(B)(iii). Third, the report lacked information on  Gornet’s qualifications and publications from the past 10 years, contravening Rule 26(a)(2)(B)(iv). Fourth, it did not provide a comprehensive list of cases in which  Gornet testified over the previous four years, violating Rule 26(a)(2)(B)(v). Finally, the report did not contain a clear statement of the compensation to be paid for Gornet’s study and testimony, as required by Rule 26(a)(2)(B)(vi).

    As a result of these deficiencies, the Court determined that the Plaintiff did not comply with Rule 26(a)(2)(B) regarding Gornet’s expert report. Additionally, the Court deemed Gornet’s non-compliant report untimely, being submitted three days after the agreed-upon 30-day extension in the Case Management Order.

    The Court then addressed the Plaintiff’s failure to comply with Rule 26(a)(2)(B) and the Case Management Order, the potential remedies were emphasized under Rule 37. Rule 37 provided the Court with wide discretion to impose sanctions for noncompliance, including exclusion of evidence, unless the failure was substantially justified or harmless. However, the Court acknowledged that the exclusion of evidence was a severe measure and should be used sparingly. Rule 37(c)(1) allowed the Court to order the payment of reasonable expenses and attorney’s fees caused by the failure to disclose and impose other appropriate sanctions. In determining an appropriate remedy, the Court considered factors such as the reason for noncompliance, the surprise and prejudice to the opposing party, the potential disruption to trial order and efficiency, and the importance of the information or testimony.

    After considering relevant factors, the Court determined that the circumstances did not justify the severe sanction of excluding all or part of Gornet’s testimony. Regarding the first factor, the Plaintiff did not explicitly state the reason for noncompliance, but it seemed to result from a combination of misunderstanding the applicable law and a failure to ensure timely submission of relevant information by Gornet. This factor slightly favored exclusion. Concerning the second factor, the surprise and prejudice to the Defendant appeared minimal, as the Plaintiff’s actions did not involve attempting to spring new expert testimony on the Defendant on the brink of trial. Instead, the Plaintiff submitted a deficient report three days late, and adjustments to the Case Management Order could accommodate the necessary steps for the Defendant. The third factor, related to trial order and efficiency, favored allowing Gornet to testify, given the trial was more than eight months away. The fourth factor, emphasizing the importance of the information or testimony, strongly opposed exclusion, as Gornet’s testimony held significant relevance to the Plaintiff’s case. Considering these factors, the Court found the Plaintiff’s noncompliance with Rule 26(a)(2)(B) to be harmless under the circumstances, and exclusion was deemed unwarranted.

    While the Court chose not to exclude Gornet’s testimony, it deemed a lesser sanction appropriate for the Plaintiff’s failure to comply with Rule 26(a)(2)(B) and the Case Management Order. Considering the circumstances, the Court found awarding reasonable fees and costs to the Defendant as an appropriate sanction. However, the Court decided to provide the Plaintiff with an opportunity to be heard before imposing this sanction, following the procedure outlined in Fed. R. Civ. P. 37(c)(1). The Court set brief deadlines for the Defendant to file a motion requesting and documenting reasonable fees and costs, for the Plaintiff to respond to those fees and costs, and for the Plaintiff to supplement her Rule 26 disclosures with a compliant expert report from Gornet within twenty-one days. Additionally, the Court extended remaining deadlines in the Case Management Order to allow the Defendant sufficient time for Gornet’s deposition and expert disclosures. This approach aligns with decisions made by other district Courts in similar situations.

    Held 

    The Court denied Defendant’s Motion to Strike Plaintiff’s Expert Witness Matthew Gornet. The Court issued further orders directing the Plaintiff to supplement her Rule 26 disclosures and provide a compliant supplemental expert report from  Gornet within twenty-one days. Additionally, the Defendant was instructed to file a motion for reasonable fees and costs within fourteen days, with the Plaintiff required to respond within the same timeframe after the motion is filed. The parties were directed to meet and confer within fourteen days to submit a Joint Proposed Scheduling Plan, suggesting new deadlines for a Second Amended Case Management Order. The Court reserved the option to decide whether a scheduling conference would be necessary based on the submitted plan before entering a Second Amended Case Management Order.

    Key Takeaways

    This case demonstrates that treating physicians providing expert opinion testimony may be subject to the more stringent report requirements of Federal Rule of Civil Procedure 26(a)(2)(B) rather than the more lenient disclosures of Rule 26(a)(2)(C). The key factor is whether the physician formed the expert opinions at issue in the course of providing treatment to the patient. If the opinions were formed outside the course of treatment, Rule 26(a)(2)(B) likely applies. 

    Here, Gornet offered specific opinions on causation, future treatment, costs, and prognosis that he appears to have formed at least partly outside the course of Peterson’s treatment. Thus, his report had to comply with Rule 26(a)(2)(B). His failure to do so subjected Peterson to potential sanctions, including exclusion of Gornet’s testimony. However, the Court opted for lesser sanctions since exclusion seemed too harsh under the circumstances. The case shows Courts have broad discretion to fashion appropriate remedies for violations of expert disclosure rules. Their goal is finding a fair outcome, not punishing a defective expert report.