Expert Witness Profiler

Tag: Trauma

  • Pain Management Expert Witness Permitted to Testify That Plaintiff’s Surgery Addressed His Annular Tear

    Pain Management Expert Witness Permitted to Testify That Plaintiff’s Surgery Addressed His Annular Tear

    Plaintiff Matthew Iwaskow was injured in a car accident on December 4, 2015. Iwaskow sought insurance proceeds that he alleged he is entitled to under his policy’s underinsured motorist bodily injury coverage.

    On November 27, 2023, Safeco filed a Federal Rule of Evidence 702 motion seeking to exclude three opinions of Iwaskow’s retained medical expert, Jeffery Petersohn, namely, (1) that Iwaskow is suffering from radicular nerve pain that is caused by a herniated disc and by a damaged vertebral endplate; (2) that Iwaskow should have fusion surgery to ameliorate his pain; and (3) that a herniated disc in Iwaskow’s back causes nerve impingement.

    On February 2, 2024, the Court granted in part and denied in part Safeco’s motion. The Court concluded that Petersohn could testify that Iwaskow had a herniated disc, but that he could not testify that the herniated disc was impinging a nerve or that Iwaskow’s pain was caused by damage to his endplate.  However, the Court found admissible Petersohn’s opinions that Iwaskow’s accident caused his injuries and that a fusion surgery could ameliorate Iwaskow’s pain.

    On December 20, 2023, Iwaskow filed a motion asking the Court to allow Iwaskow to disclose recent medical records concerning Iwaskow’s pending back surgery. The Court denied the motion, finding that the disclosure of this evidence so close to the February 12, 2024 trial would prejudice Safeco. The trial was later vacated due to a criminal trial set on the same day and was reset for December 16, 2024. Iwaskow then renewed his motion seeking to reopen discovery.

    Given the continuance of the trial, the Court found that Safeco now had sufficient time to complete the additional discovery necessary to cure any prejudice to it from Iwaskow’s new disclosures and therefore granted Iwaskow’s motion to reopen discovery. 

    Supplemental Expert Report

    In its order reopening discovery, the Court ordered Iwaskow to “produce to defendant all previously undisclosed medical records, documents concerning plaintiff’s surgery, and records from plaintiff’s treating providers.” 

    The Court required the parties to “submit to Magistrate Judge Susan Prose proposed amendments to the final pretrial order in the form of suggested deadlines to complete additional discovery, to file additional discovery objections or motions, and to file any Rule 702 challenges based on the new discovery and supplemental expert reports.”

    On July 22, 2024, Judge Prose granted Safeco’s request for it to conduct a second Independent Medical Exam (“IME”) of Iwaskow and set deadlines for the parties to file Rule 702 motions.

    On October 14, 2024, Petersohn wrote a supplemental expert report responding to Safeco’s retained medical expert’s report on Iwaskow’s second IME. 

    Safeco filed its motion to exclude three opinions in Petersohn’s supplemental report and mentioned in Petersohn’s deposition regarding the second IME. First, Safeco asks the Court to exclude Petersohn’s opinion that Iwaskow has endplate fractures on the grounds that the Court has already excluded this opinion.

    Safeco also sought to exclude Petersohn’s opinions that (1) Iwaskow has a painful radial annular tear caused by trauma and (2) Iwaskow’s surgery was necessitated by the injuries that were caused by the 2015 accident. 

    Pain Management Expert Witness

    Jeffery Petersohn has run a private interventional pain medicine practice in New Jersey and Colorado.

    His specialty is “diagnostic discography, interventions for discogenic pain, kyphoplasty, spinal cord and DRG stimulation, interspinous spacers, sacroiliac joint fusion, lumbar transforaminal and interlaminar full-endoscopic discectomy/foraminotomy/facetectomy.

    Get the full story on challenges to Jeffery Petersohn’s expert opinions and testimony with an in-depth Challenge Study. 

    Discussion by the Court

    Safeco did not challenge Petersohn’s qualifications to provide the expert medical opinions contained in his October 14, 2024 report. Safeco challenged whether three opinions in Petersohn’s October 14, 2024 expert report are based on sufficient facts and data, are the products of reliable principles and methods, and reflect a reliable application of those methods to the facts of this case. Therefore, the Court will determine whether the opinions found in Petersohn’s October 14, 2024 report are sufficiently reliable.

    Opinion that Plaintiff has Endplate Damage

    The Court previously excluded Petersohn’s opinion that Iwaskow has endplate damage because Iwaskow failed to demonstrate that this opinion was based on sufficient evidence and a reliable methodology. Petersohn’s reference to Modic changes, which could be consistent with a “possible endplate fracture,” was insufficient to demonstrate that Petersohn’s opinion regarding endplate damage is based on sufficient data and a reliable diagnostic method.

    The Court found that “Petersohn’s reports assert only that an endplate fracture is possible and do not discuss the likelihood of this possibility.”

    Petersohn’s report does not define “HNP.” The Court takes judicial notice of the fact that HNP stands for herniated nucleus pulposus, which “is a condition in which part or all of the soft, gelatinous central portion of an intervertebral disk is forced through a weakened part of the disk, resulting in back pain and nerve root irritation.”

    In his June 9, 2024 report, Petersohn’s only reference to endplate damage is his statement that the “vertebral bodies at the vertebral endplates adjacent to the HNP continue to demonstrate endplate fractures.” 

    In his October 14, 2024 report, Petersohn stated that Iwaskow has “small vertebral endplate fractures noted in the adjacent vertebral body endplates” and that this could be a source “of pain and symptomatic injury to Iwaskow’s Lumbar intervertebral disc and vertebral bodies.”

    Analysis

    The Court held that Petersohn’s opinions regarding Iwaskow’s endplate fractures in his October 14, 2024 report are outside the scope of the order permitting disclosure of expert opinions on Iwaskow’s second IME and will be excluded on this basis.

    Turning to Petersohn’s statement in his June 9, 2024 report that Iwaskow’s “vertebral bodies at the vertebral endplates adjacent to the HNP continue to demonstrate endplate fractures,” the Court held that Iwaskow provides no support for the proposition that his obligation under Rule 26(e) to supplement incomplete or incorrect information in an expert report somehow exempts him from the Court’s prior ruling that Petersohn’s opinion is inadmissible.

     In the Court’s order reopening discovery, the Court permitted Iwaskow to “supplement his expert disclosures with any opinions related to recent recommendations by Iwaskow’s treating physicians that he undergoes disc arthroplasty or fusion surgery.” Nothing in that order permits Petersohn to supplement opinions that have been excluded by the Court. 

    Petersohn’s statement that Iwaskow’s “vertebral bodies at the vertebral endplates adjacent to the HNP continue to demonstrate endplate fractures” is an apparent reference to Petersohn’s reading of a December 4, 2023 MRI taken of Iwaskow’s back. This MRI was unavailable to Petersohn when he wrote his initial expert reports in this case. 

    Petersohn’s June 9, 2024 report did not address how his opinion that Iwaskow has endplate damage is “related to recent recommendations by Iwaskow’s treating physicians that he undergoes disc arthroplasty or fusion surgery” and is therefore beyond the scope of the Court’s order permitting Petersohn to supplement his opinions. Therefore, the Court ended up excluding Petersohn’s opinion that Iwaskow has endplate damage.

    Opinion that Plaintiff has a Radial Annular Tear Caused by Trauma

    Safeco argued that, “[b]ecause Petersohn cannot establish that the annular tear he claims Plaintiff suffered in the 2015 car crash has been the longstanding, and recent, source of Plaintiff’s pain, he should not be permitted to opine that Plaintiff’s 2024 spinal surgery was necessitated by the 2015 Accident.”

     In his October 14, 2024 report, Petersohn distinguishes between two types of annular tears. Petersohn states that annular tears of individual collagen fibrils or delamination that “transverse within the posterior disc annulus” are “rarely and infrequently symptomatic.” 

    Petersohn asserted that an “annular tear that extends from the inside of the disc (the nucleus) and extends through multiple sheets of collagen into or through the outer wall of the disc is called a radial tear and this is more likely the result of trauma. This is frequently associated with neovascularization and neoinnervation of the annular fissure, causing pain.” 

    First, Safeco argued that Petersohn provides no support for the proposition that radial tears are most often the result of trauma. Next, Safeco argued that Petersohn’s opinion that Iwaskow has a radial annular tear is not supported by sufficient data because Petersohn’s opinion that Iwaskow’s MRIs show a High-Intensity Zone (“HIZ”) is not supported by the rest of Iwaskow’s medical records.

    Safeco contended that Petersohn’s method of diagnosing Iwaskow’s annular tear is unreliable because, at Petersohn’s deposition, he stated that an MRI was insufficient to show that Iwaskow has a radial annular tear.

    Analysis

    The Court finds that Iwaskow has failed to demonstrate that Petersohn’s opinion that Iwaskow has a radial annular tear is based on a reliable method. Even if the Court were to find that Petersohn’s method of diagnosing Iwaskow’s annular tear as radial based on Modic changes was sufficiently reliable, Iwaskow has failed to show that Petersohn’s opinion fits the facts of the case.

    Finally, the Court considers Petersohn’s opinion that “Iwaskow’s surgery was necessitated to treat the painful HNP, the annular tear, the endplate fractures and resulting nerve pain that were caused by the MVC.”

    Petersohn’s report states that (1) Iwaskow’s annular tear is shown as an HIZ on his MRIs, (2) HIZs correspond to a high likelihood of a positive surgical outcome, and (3) Iwaskow’s annular tear was caused by the 2015 accident. 

    The Court excluded Petersohn’s opinion that Iwaskow’s annular tear is more likely the result of trauma but found Petersohn’s opinion that Iwaskow has an HIZ on his MRI imaging was based on sufficient facts and data.

    Since Petersohn’s report cites authority for the proposition that the presence of an HIZ in an individual with an annular tear indicates a 70% likelihood that a patient would have a “positive surgical outcome,” and that further studies indicate the probability of a positive surgical outcome is increased when certain other diagnostic factors are present, the Court held that Petersohn will be allowed to testify that Iwaskow’s surgery was necessitated, in part, as a means of treating his annular tear. 

    Opinion that Plaintiff’s Surgery was Necessitated by the December 15, 2015 Car Accident

    Safeco argued that Petersohn should not be permitted to opine that the December 15, 2015 car accident caused the injuries and pain for which Iwaskow underwent surgery. 

    First, Safeco argued that Petersohn’s opinion that the 2015 car accident necessitated Iwaskow’s back surgery to treat his disc herniation and annular tear should be excluded because Petersohn does not rule out the possibility that Iwaskow’s pain is caused by his Bertolotti’s syndrome.

    In his October 14, 2024 report, Petersohn stated that

    1) Iwaskow has an anatomic abnormality of the spine called “Bertolotti’s syndrome” that is present in 4-8% of the population,

    2) Bertolotti’s syndrome is a spinal developmental defect present before birth that makes injury to the spine following a vehicular collision more likely than in a patient who does not have this abnormality. These injuries include disc herniation, painful annular tears, and vertebral, endplate fractures

    3) Iwaskow suffered injury to the lumbar disc and to the vertebral endplate regions at the level adjacent to the Bertolotti’s abnormality that were the original sources of his pain,

    4) Iwaskow’s surgery was necessitated to treat the painful HNP, the annular tear, the endplate fractures and resulting nerve pain that were caused by the MVC.

    5) Surgery was not necessitated to treat the Bertolotti’s syndrome.

    Analysis

    The Court held that Petersohn’s opinions regarding Iwaskow’s Bertolotti’s syndrome are within the scope of the order limiting the scope of Petersohn’s response to Sabin’s second IME, given that Sabin raises the issue of Iwaskow’s potential Bertolotti’s syndrome.

    Safeco argued that Petersohn’s opinion that “[s]urgery was not necessitated to treat the Bertolotti’s syndrome” is not reliable because medical literature indicated that individuals with Bertolotti’s syndrome are more likely to experience disc herniation and that Bertolotti’s syndrome can cause chronic back pain. 

    No party disputes that Iwaskow first began reporting pain after the car accident. Safeco did not explain why the presence of Iwaskow’s Bertolotti’s syndrome throughout his life but the absence of pain until the accident is insufficient to show that Iwaskow’s Bertolotti’s syndrome did not cause Iwaskow’s back pain. Therefore, the Court finds that Petersohn may testify that Iwaskow’s surgery was not necessitated by his Bertolotti’s syndrome.

    The Court also finds that Petersohn’s opinion that Iwaskow’s surgery was necessitated to treat the herniated disc, the annular tear, and the resulting nerve pain caused by the 2015 accident is admissible. 

    Petersohn’s opinion, in full, is that “Iwaskow’s surgery was necessitated to treat the painful HNP, the annular tear, the endplate fractures and resulting nerve pain that were caused by the MVC.” The Court has excluded Petersohn’s opinion that Iwaskow’s herniated disc is impinging a nerve. Therefore, to the extent that Petersohn’s statements regarding a “painful HNP” and “resulting nerve pain” is in reference to a herniated disc impinging a nerve, that opinion is excluded. Moreover, for the reasons discussed above, Petersohn will not be permitted to testify that Iwaskow has endplate fractures and cannot testify that such fractures are causing Iwaskow’s pain. 

    Held

    The Court granted in part and denied in part the Defendant Safeco Insurance Company of America’s Rule 702 motion to exclude and/or limit testimony of Plaintiff’s expert witness Dr. Jeffery D. Petersohn.

    Key Takeaway:

    It should be noted that since Iwaskow first began reporting pain after the accident and has done so consistently since 2015, Iwaskow’s medical reports are consistent with Petersohn’s opinion that the accident caused Iwaskow’s injuries. Therefore, Petersohn’s opinion that the accident caused the herniated disc, annular tear, and back pain that was treated by the back surgery is sufficiently reliable. 

    However, when Safeco sought to exclude Petersohn’s opinion that Iwaskow’s herniated disc is impinging a nerve, the Court held that Petersohn’s October 14, 2024 report only discusses Iwaskow’s herniated disc and does not mention that the disc is pinching a nerve. Moreover, the Court has already excluded this opinion while Iwaskow states that he “is not seeking to resuscitate the opinion on nerve impingement.”

    Case Details:

    Case Caption: Iwaskow V. Safeco Insurance Company Of America
    Docket Number: 1:21cv5
    Court: United States District Court, Colorado
    Order Date: December 06, 2024
  • Pediatrics Expert Witness’ Psychological Diagnoses of the Three Children Admitted

    Pediatrics Expert Witness’ Psychological Diagnoses of the Three Children Admitted

    Respondent traveled with her three minor children, J.H., A.H., and S.H., from Mexico to the United States in 2022. Petitioner sought the return of his minor children to Mexico under the Hague Convention. Respondent called Dr. Minal Giri to testify as an expert witness on July 16 and Dr. Paul Gillingham to testify as an expert witness on August 5. Petitioner reserved his objections during the hearing and now moves to exclude the opinions and testimony of Giri and Gillingham.

    Pediatrics Expert Witness 

    Minal Giri is a licensed pediatrician with a medical degree from the University of Chicago. She has been a practicing pediatrician for over twenty years, since she completed her residency at Lutheran General Hospital in 2002. As part of her training, she studied mental health and mental trauma experienced by children. And as part of her current practice, she sees and treats children suffering from mental health conditions such as anxiety and depression on a regular basis. She completed a Global Mental Health Certificate at Harvard University in 2020 that focused on refugee trauma and recovery. 

    Get the full story on challenges to Minal Giri’s expert opinions and testimony with an in-depth Challenge Study. 

    History Expert Witness 

    Paul Gillingham is a Professor in the History and Spanish & Portuguese Departments of Northwestern University and holds a Ph.D in the history of modern Mexico.

    Get the full story on challenges to Paul Gillingham’s expert opinions and testimony with an in-depth Challenge Study.

    Discussion by the Court

    Minal Giri

    In her report and testimony, Giri diagnosed J.H. with post-traumatic stress disorder (“PTSD”) and generalized anxiety disorder, A.H. with PTSD and generalized anxiety disorder, and S.H. with separation anxiety disorder. She opined that if the three children were to return to Mexico, this would compound their existing trauma and exacerbate their disorders. 

    Qualifications

    First, Petitioner argued that Giri is not qualified to provide psychological diagnoses because she is neither a psychiatrist nor a psychologist. But Giri has specific experience diagnosing and treating mental health and mental trauma for immigrant and refugee children. She has written expert reports for approximately 35 prior cases, each of which involved the mental evaluation of children or adults seeking asylum and immigration relief. The Court held that Giri is qualified to provide psychological diagnoses for the three children.

    Methodology

    Petitioner challenged Giri’s methodology. Primarily, Petitioner argued that Giri’s methodology was flawed because she did not ask questions during the interviews about possible causes of the children’s symptoms, beyond their father’s alleged mistreatment. Moreover, Petitioner contended that Giri’s reliance on the Istanbul Protocol implies a false assumption by Giri that the children had been traumatized. 

    The Court held that Giri’s methodology was sound. She interviewed J.H., A.H., and S.H. consistent with her training as a pediatrician and reached conclusions based on those interviews.

    Petitioner also argued that Giri’s methodology was flawed because the DSM-5 contains eight requirements for a PTSD diagnosis and Giri’s reports for J.H. and A.H. enumerated just five of these requirements. The Court held that Petitioner’s cross-examination was the appropriate remedy to attack the missing information rather than exclusion of Giri’s entire report.

    Petitioner argued that Giri’s methodology was flawed because Giri was not present when J.H. and A.H. filled out the GAD-7 and PHQ-9 questionnaires (screening tests for mental health conditions) and thus had no way to verify their answers. Giri testified that her diagnoses were based on the interviews, not the questionnaires, and that the questionnaires merely confirmed the diagnoses she had already reached based on the interviews. The Court affirmed the admissibility of the diagnoses.

    Paul Gillingham

    In his report and during his testimony, Gillingham offered an opinion on 1) the general level of violence in Respondent’s hometown of Zitácuaro; 2) whether, based on his understanding of Mexico and Zitácuaro, Respondent’s allegations of violence were credible; and 3) whether, based on his understanding of Mexico and Zitácuaro, Respondent would have been able to rely on the police or court system for recourse in her divorce case or for physical protection.

    First, Petitioner argued that Gillingham’s report should be excluded because Gillingham failed to disclose all his sources. The Court held that this particular nondisclosure does not warrant exclusion of the entire report. Gillingham testified that he had relied on three data points in forming his opinion about violence in Zitácuaro: homicide rates, internally displaced persons, and disappearances. Gillingham’s report disclosed homicide rates but failed to disclose anything about internally displaced persons or disappearances. Overall, Gillingham’s eighteen-page report contains thorough citations with fifty-eight footnotes. Moreover, Petitioner’s counsel effectively and extensively cross-examined Gillingham on this issue. The Court found that Petitioner fully cured any prejudice stemming from the non-disclosure and thus that the non-disclosure was harmless.

    Second, Petitioner argued that Gillingham’s report and testimony should be excluded as unreliable and irrelevant because Gillingham failed to rely on facts specific to this case. However, Gillingham’s mission was to take the allegations made by Respondent and to assess their general plausibility given what he knows, as an expert, about the political and criminal situation in Zitácuaro. The Court held that the nature of Gillingham’s testimony is unusual. It is less of an analysis and more a sharing of information about Zitácuaro. But there is nothing to suggest that the information provided by Gillingham is flawed. The Court found it at least minimally relevant and thus admissible.

    Held

    The Court denied the Petitioner’s motions to exclude the opinions and testimony of Minal Giri and Paul Gillingham.

    Key Takeaway:

    • All expert opinions come with assumptions and conclusions. Petitioner is free to disagree with Giri’s assumptions and conclusions, but that does not render Giri’s testimony inadmissible.
    • There is nothing to suggest that the information provided by Gillingham is flawed. And his testimony is at least minimally relevant to provide the Court with context for Respondent’s hometown of Zitácuaro. Whether the Court will ultimately afford Gillingham’s testimony much weight in deciding this case is an open question. The testimony, however, is at least minimally relevant and thus admissible.

    Case Details:

    Case Caption: Delgado Moreno V. Hernandez Escamilla
    Docket Number: 1:23cv15736
    Court: United States District Court for the Northern District of Illinois, Eastern Division
    Order Date: August 27, 2024
  • Orthopaedic Surgery Expert Witness’ Testimony about the Severity of the Collision Admitted

    Orthopaedic Surgery Expert Witness’ Testimony about the Severity of the Collision Admitted

    A district judge in Nebraska admitted the testimony of an orthopedic spine surgeon despite lacking the required education, training and experience in physics, engineering, accident reconstruction or biomechanics.

    Plaintiffs, Lisa Rentz Johnson and George Johnson, have brought a personal injury lawsuit involving an accident between two tractor-trailers in a parking lot. Lisa alleged she sustained physical injuries and disability because of the collision, including injuries to her head, neck, back, left arm, and left knee. George sought damages for alleged loss of consortium.

    The Defendants retained Dr. Chris Cornett, an orthopedic spine surgeon with Nebraska Medicine, as an expert witness to perform an independent medical evaluation (“IME”) of Lisa.

    The Plaintiffs filed a motion to exclude certain testimony and opinions found in Cornett’s report.

    The Plaintiffs argued Cornett’s opinions related to the severity of the collision must be stricken and excluded from trial because he failed to provide the methodology by which he formed his non-medical opinions.

    Orthopaedic Surgery Expert Witness

    Dr. Chris A. Cornett, an orthopedic spine surgeon with Nebraska Medicine, has more than a decade of experience as a trauma doctor. He attended medical school at University of Nebraska Medical Center and also has a master’s degree in physical therapy from the UNMC Medicine School of Allied Health Professions. He is a member of the American Academy of Orthopaedic Surgeons (AAOS).

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

    Discussion by the Court

    The Plaintiffs objected to Cornett’s description of the damage to the two vehicles based on the photographs he reviewed; Cornett’s noting, “The mechanism in this case and the photographs of the vehicles seem mild, and certainly not high energy in my opinion”; and his conclusion that he did “not see any reason, given this mechanism and the prior history, that one could medically state that this injury permanently aggravated or worsened those preexisting conditions.”

    The Plaintiffs argued that since Cornett has no education, training and experience in anything other than orthopedics, all of his opinions on speed, impact and energy should be excluded.”

    Cornett testified during his deposition that he did not see it was “reasonable medically that [Lisa] suffered a significant spine injury or a permanent worsening of a prior condition that ultimately required surgery.”

    When Cornett was asked what qualifications he has “to assess the energy forces related to the impact of the case”, he responded, “I would say no qualifications, again, as a physicist or a biomechanical expert but just qualifications as taking Level 1 trauma call for over a decade.”

    Cornett testified that through his experience as a trauma doctor, it is common to have some description of an accident, either through first responders directly or in subsequent reports.

    The Court was satisfied that Cornett is sufficiently qualified and reliable to opine on the specific issues relevant to this case.

    Held

    The Court denied Plaintiffs’ motion to exclude certain testimony and opinions found in Chris Cornett’s report.

    Key Takeaway:

    Cornett lacked education in physics, engineering, accident reconstruction or biomechanics but testified that through his experience as a trauma doctor, it is common to have some description of an accident, either through first responders directly or in subsequent reports.

    Case Details:

    Case Caption: Johnson Et Al V. C.R. England, Inc. Et Al
    Docket Number: 8:21cv363
    Court: United States District Court, Nebraska
    Order Date: July 15, 2024
  • Psychology Expert Witness Testimony Regarding Trauma Resulting from Alleged Racial Discrimination Limited

    Psychology Expert Witness Testimony Regarding Trauma Resulting from Alleged Racial Discrimination Limited

    Plaintiffs and Proposed Class Representatives Quinton Burns and K.B (collectively “Burns”) brought this action individually and on behalf of all similarly situated Black people against Defendants SeaWorld Parks & Entertainment, Inc. and SeaWorld Parks & Entertainment, LLC on account of the alleged racial discrimination that they suffered at Defendants’ property, Sesame Place Philadelphia (“Sesame Place”).

    Plaintiffs—Black and Hispanic parents and their children—allege that, when they visited the park, costumed character performers refused to interact with them in favor of similarly situated white children. Plaintiff retained, Michael L. Lindsey, to opine on “the extent to which racial discrimination, experienced by Plaintiffs, psychologically and traumatically impacted them” as well as “the therapeutic needs Plaintiffs will have over the course of their respective lifetimes.”

    Lindsey interviewed the named Plaintiffs and some of their family members and compiled reports of his observations. He conducted “each” of these interviews “exactly” according to an interview protocol that asked questions of both the children and parents in the room. The extensive script consisting of questions directed at the children who were allegedly discriminated against and their parents was prepared based on the criteria in the Diagnostic and Statistics Manual – 5 (“DSM-5”), the widely used taxonomy of mental health
    disorders. The DSM-5 contains diagnostic criteria for post-traumatic stress disorder (“PTSD”), which include the presence of certain “intrusion symptoms,” such as recurrent “distressing memories” or “[d]issociative reactions (e.g., flashbacks), and “persistent avoidance of stimuli associated with the traumatic event(s),” which can manifest as “efforts to avoid activities, places, or physical reminders” of the event, “[m]arkedly diminished interest or participation in significant activities,” or “[s]ocially withdrawn behavior.”

    Lindsey prepared reports about each family after conducting nine interviews of up to two hours each. Lindsey concluded that racism should be conceptualized as a toxic stressor associated with internalizing and externalizing behaviors, anger, conduct problems, and delinquent behaviors in adolescents and preadolescents or even should be considered a form of violence. Lindsey opined that the behavior exhibited by SeaWorld’s costumed characters by shunning and ignoring children of color was a representative example of institutional racism. Lindsey categorized the same as an adverse childhood experience (ACE) and recommended trauma-informed care for the traumatic experiences created by SeaWorld. Lindsey opined that SeaWorld was required to compensate the Plaintiffs for their immediate harm, allocate funds for the collateral mental and physical consequences of such experiences, and pay punitive damages to substantially and significantly discourage other similarly situated institutions from perpetuating such experiences.

    SeaWorld filed a motion to strike the report and testimony of Plaintiffs’ expert, Michael Lindsey.

    Psychology Expert Witness

    Michael L. Lindsey is a lecturer in the Psychology Department at Southern Methodist University in Dallas, Texas and the President of Nestor Consultants, Inc., which offers multiple services, including psychological evaluations and diversity trainings. He received a juris doctor from Villanova Law School and a PhD in Clinical Psychology from Hahnemann University. He has taught classes on, among other topics, developmental psychology, child psychology, research methods, and the role of ethics and diversity in psychology. He is a member of the American Psychological Association’s (“APA”) Law and Society Division and is a member of the planning committee for the International Academy of Law and Mental Health.

    Discussion by the Court

    SeaWorld initially argued that, because Lindsey was not a licensed psychologist and did not maintain a clinical practice, he was not qualified to deliver his opinions as a matter of law. The Court held that Lindsey’s lack of a professional license was not dispositive. And while Lindsey did not have a clinical practice, he had extensive experience both lecturing on and researching issues related to developmental psychology and consulting on the precise type of psychological issues relevant to his reports.

    SeaWorld maintained that Lindsey’s reports were not based on “any methodology . . . let alone a methodology” that satisfied Daubert and its progeny. Sea World contended that Lindsey failed to show a causal relationship between the alleged racial discrimination Plaintiffs suffered at Sesame Place and the trauma he says they have suffered. SeaWorld also found fault with Lindsey’s decision to interview the Plaintiff families in a group, without ever speaking with the children alone. Finally, SeaWorld took issue with Lindsey’s nearly identical recommendations that the Plaintiff Parents receive therapy.

    Lindsey’s reports contained three separate findings, the last of which drove his recommendations that the Plaintiffs receive therapy and, especially, punitive damages:

    1. His professional experience and the scientific literature showed that, in general, ACEs “may cause trauma.”
    2. When ACEs in general “do result in trauma,” they should be treated with trauma-informed care.
    3. Based on Lindsey’s “professional opinion,” SeaWorld had created traumatic experiences for the identified family members.

    Implicit in his final finding was: (1) that what allegedly happened to the Plaintiff Children at Sesame Place constituted ACEs; (2) that those ACEs were the sort, in general, that caused trauma; and (3) that those individual ACEs, in fact, caused trauma for the Plaintiff Children.

    The Court noted that the APA made it clear that Lindsey’s chosen method of assessment, a clinical interview, was a widely accepted tool and altough his script might not have constituted a “structured diagnostic interview” per the APA’s handbook, this technique, although subjective, can still be sufficiently scientifically grounded to be reliable considering the interview protocol included several questions to both sets of interviewees aimed at understanding what happened to the Plaintiff Children at Sesame Place, how it made them feel at the time, and how they have processed the events since, all of which would help Lindsey evaluate whether they constituted ACEs.

    Next, SeaWorld’s argued that Lindsey “neither provided nor followed any identifiable framework to assess which adverse experiences result in ‘trauma.’” The Court noted the lack of a reliable method to determine whether the ACEs that he identified caused trauma in the specific instances he was tasked with examining. Clinical interviews like the ones Lindsey conducted remained, in his view, the primary basis for determining whether an ACE had caused trauma, even though SeaWorld identified multiple peer-reviewed tests that can be used to measure trauma in both adults and children. However, it was seen that Lindsey’s interview protocol, albeit nonstandard, contained questions that plainly tracked the diagnostic criteria for PTSD contained in the DSM-5, which SeaWorld conceded was “the authoritative work on mental disorders. The Court held that it constituted a scientifically grounded means by which he could assess, in combination with his experience and review of the relevant scientific literature, whether the ACEs that the Plaintiff Children experienced are the type that would cause trauma.

    The Court noted that Lindsey’s findings shifted in scope from the general to the individual, concluding that “SeaWorld had created traumatic experiences for these identified family members” and concluded that Lindsey’s reports were not based in the scientific method in this respect. Although Lindsey’s interview protocol did contain plenty of questions that would have allowed him to elicit the Plaintiff Children’s emotions and how they then related to amusement parks, it did not contain any mechanism for isolating the causes of those sentiments. Lindsey failed to ask the Plaintiff Parents about their children’s psychosocial history and he admitted in his deposition that he did not review Plaintiffs’ videos of some of the interactions between the children and the costumed characters, which could have helped him better understand the severity of the ACEs being described. Nor can the scientific literature he cited bridge the gap at this step because these studies discuss the potentially traumatic impact of ACEs that involve racism, not the actual traumatic nature of the ACEs that Lindsey identified.  Henceforth, Lindsey was not permitted to testify about whether the ACEs he identified caused the symptoms of trauma that he observed.

    He could testify that, based on his scientifically based interview protocol, review of relevant scientific literature, and years of professional experience, the alleged discriminatory events at Sesame Place were ACEs likely to cause trauma. He could also testify that the Plaintiff Children’s symptoms were consistent with trauma and that many interviewees and their family members could benefit from therapy. However, he couldn’t solely attribute the observed symptoms to the alleged discrimination at Sesame Place.

    SeaWorld pointed out that Lindsey failed to “control for ‘suggestibility’—a cognitive bias concept in which a child’s response’s may be influenced or contaminated by what parents or older siblings said about the events in issue or their feelings about said events when it interviewed the Parent and Child Plaintiffs together. However, the Court determined that such concern implicated Lindsey’s credibility and was the province of the jury. Moreover, despite making essentially the same recommendation for every Plaintiff Parent, whether interviewed or not, Lindsey’s failure to engage in any “differentiation or . . . individualized analysis” did not warrant exclusion considering Lindsey’s reports consisted of unique narratives of the interviews he conducted, including the responses from both the child and parent interviewees that informed his conclusions that what happened to Plaintiffs at Sesame Place constituted an ACE, in addition to the materially identical recommendations.

    The Court, citing UGI Sunbury LLC v. A Permanent Easement for 1.7575 Acres, 949 F.3d 825, 832 (3d Cir. 2020), held that Daubert requires that an expert’s testimony must be “‘sufficiently tied to the facts of the case,’ so that it ‘fits’ the dispute and will assist the trier of fact.” SeaWorld argued that the necessary fit was missing there because Lindsey stopped short of diagnosing any Plaintiff with a condition listed in the DSM-5. The Court held that the question of whether therapy (with or without a DSM-5 diagnosis) would be beneficial was relevant to questions that the jury would have to evaluate at trial. However, Lindsey’s reports would not warrant exclusion given the “liberal” nature of the “fit” inquiry under Daubert.

    SeaWorld also identified multiple statements in Lindsey’s reports that it argued were otherwise inadmissible as a matter of law. Lindsey’s discussion of institutional racism included a legal conclusion that SeaWorld argued must be stricken: “SeaWorld, by their behaviors of shunning and ignoring children of color, are representative examples of” individual or institutional racism. SeaWorld argued that the same must happen to Lindsey’s discussion of damages, where he concluded that “SeaWorld must pay Plaintiffs for their immediate harm, allocate funds for the collateral mental and physical consequences of these experiences, and pay punitive damages to substantially and significantly discourage other similarly situated institutions from perpetuating such experiences.” The Court held that the definition of “institutional racism” that Lindsey tagged SeaWorld with there—including a description of “institutional discrimination” as something that “targeted specific, easily stereotyped, generalizable attributes of individuals”—implied that the company acted with a degree volition that steered his conclusion too close to an ultimate issue in this case. The Court also held that opining on the appropriateness of the punitive damages was a job for the fact finder, not an expert witness.

    Held

    Defendants’ Motion was granted in that Michael Lindsey was precluded from testifying on: (1) whether Defendants, its employees, or its agents were the cause of the trauma symptoms that he observed during his clinical interviews of Plaintiffs; (2) whether the alleged incidents of racial discrimination at Sesame Place Philadelphia constitute intentional discrimination; or, (3) whether Plaintiffs are entitled to punitive damages.  Lindsey’s opinions on these issues were stricken by the Court but Defendants’ motion to strike the testimony of Lindsey was denied in all other respects.

    The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.

    Key Takeaways:

    SeaWorld initially contested Lindsey’s qualifications, citing his lack of a professional license and clinical practice. However, the Court determined that his extensive experience and expertise were sufficient, regardless of these factors. Additionally, SeaWorld challenged the methodology of Lindsey’s reports, arguing they lacked scientific basis. Despite this, the Court found his interview protocol and review of literature to be acceptable. Lindsey’s findings regarding trauma and therapy recommendations were upheld by the Court, although he couldn’t solely attribute symptoms to alleged discrimination. Concerns were raised about Lindsey’s use of the concept of “suggestibility” and the lack of individualized analysis, but the Court considered these matters of credibility for the jury to decide. The Court applied the Daubert standard to assess the admissibility of Lindsey’s testimony, allowing most of his reports to be admitted while ruling out some statements as inadmissible legal conclusions. SeaWorld’s objections regarding certain statements in Lindsey’s reports were upheld by the Court, affirming that determination of punitive damages is the role of the fact finder, not an expert witness. Overall, the text highlights the intricate process of evaluating expert testimony, with the Court meticulously scrutinizing Lindsey’s qualifications, methodology, and the admissibility of his reports and testimony.

    Case Details:

    Case Caption: Burns V. Seaworld Parks & Entertainment, Inc., Et Al
    Docket Number: 2:22cv2941
    Court: United States District Court, Pennsylvania Eastern
    Citation: 2024 U.S. Dist. LEXIS 29633
    Order Date: February 21, 2024