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Nkemakolam v. St. John's Military School

United States District Court, D. Kansas

February 24, 2014

YOLANDA NKEMAKOLAM, as Parent and Next Friend of K.N., et al., Plaintiffs,


JOHN W. LUNGSTRUM, District Judge.

This matter comes before the Court on the motions by defendant to exclude expert testimony by Dr. Roger Pitman (Doc. ## 330/331), Dr. Shirley Taylor (Doc. ## 330/332), and Carol Hotchkiss (Doc. ## 330/333). For the reasons set forth below, the motions concerning Dr. Pitman and Ms. Hotchkiss are denied, and the motion concerning Dr. Taylor is granted in part and denied in part.

I. Governing Standards

In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the Supreme Court instructed that district courts are to perform a "gatekeeping" role concerning the admission of expert scientific testimony. See id. at 589-93; see also Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137, 147-48 (1999). The admissibility of expert testimony is governed by Rule 702 of the Federal Rules of Evidence, which states:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

Fed. R. Evid. 702.

In order to determine that an expert's opinions are admissible, this Court must undertake a two-part analysis: first, the Court must determine that the witness is qualified by "knowledge, skill, experience, training, or education" to render the opinions; and second, the Court must determine whether the witness's opinions are "reliable" under the principles set forth in Daubert and Kumho Tire. See Ralston v. Smith & Nephew Richards, Inc., 275 F.3d 965, 969 (10th Cir. 2001). The rejection of expert testimony is the exception rather than the rule. See Fed.R.Evid. 702 advisory committee notes.

To qualify as an expert, the witness must possess such "knowledge, skill, experience, training, or education" in the particular field as to make it appear that his or her opinion would rest on a substantial foundation and would tend to aid the trier of fact in its search for the truth. See LifeWise Master Funding v. Telebank, 374 F.3d 917, 928 (10th Cir. 2004). In determining whether the proffered testimony is reliable, the Court assesses whether the reasoning or methodology underlying the testimony is scientifically valid and whether that reasoning or methodology can be properly applied to the facts in issue. See Daubert, 509 U.S. at 592-93. The Daubert Court listed four factors relevant to assessing reliability: (1) whether the theory has been tested; (2) whether the theory has been subject to peer review and publication; (3) the known or potential rate of error associated with the theory; and (4) whether the theory has attained widespread or general acceptance. See id. at 592-94. In Kumho Tire, however, the Supreme Court emphasized that these four factors are not a "definitive checklist or test" and that a court's inquiry into reliability must be "tied to the facts of a particular case." See Kumho Tire, 526 U.S. at 150. In some cases, "the relevant reliability concerns may focus upon personal knowledge or experience, " rather than the Daubert factors and scientific foundations. See id. (quoted in Bitler v. A.O. Smith Corp., 400 F.3d 1227, 1235 (10th Cir. 2004)). The district court has "considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable." See id. at 152.

II. Motion to Exclude Expert Testimony of Dr. Roger Pitman

Defendant seeks to exclude testimony by Dr. Roger Pitman, a psychiatrist, who has rendered opinions on four of the plaintiffs, including assigning mental health impairment percentages for each of those plaintiffs. Defendant does not challenge Dr. Pitman's qualifications, but instead argues that Dr. Pitman's methodology and opinions are not reliable. In making that argument, however, defendant has failed to provide any evidence or authority-from another expert or from literature or legal precedent-suggesting that Dr. Pitman's methodology is unreliable. Instead, defendant has cited only Dr. Pitman's own deposition testimony and expert reports, in asking the Court simply to conclude on its own, within a specialized medical field, that Dr. Pitman's conclusions are so unreliable as to merit exclusion. The Court is unwilling to do so. Accordingly, this motion is denied. The Court addresses defendant's specific arguments in turn.

Defendant first argues that Dr. Pitman's opinions concerning one plaintiff are unreliable because he changed answers indicated by the plaintiff on written tests, which changes affected the categories into which the plaintiff fell for diagnostic purposes. Dr. Pitman explained those "changes" (Dr. Pitman took issue with that characterization) in his report and deposition, however. In one case, his interview with the plaintiff revealed that the reason given for plaintiff's answer did not actually support the particular trait (over-reporting), and Dr. Pitman disclosed that explanation in his expert report. In the other instance, Dr. Pitman changed the plaintiff's initial answers because of the interview, consistent with that test's instructions that the interviewer should make the final judgment concerning the questions based on the interview. In making this argument, defendant did not bother to address Dr. Pitman's explanations, even in its reply brief. Accordingly, defendant has not provided any evidence or authority to suggest that Dr. Pitman acted improperly with respect to those answers.

The Court is also not persuaded by defendant's other arguments. Defendant complains that Dr. Pitman interviewed one plaintiff by telephone and allowed that plaintiff to complete the written tests at his home. Defendant also complains that two other plaintiffs were allowed to complete their tests with parents in the same room, while noting that those plaintiffs' answers included cross-outs and changes. Defendant suggests that Dr. Pitman could not be certain that these plaintiffs' parents did not help with the answers. The Court rejects these arguments as a basis to find his methodology unreliable. Dr. Pitman testified that he instructed plaintiffs to complete the tests without conferring with anyone, and he testified that the applicable standards allowed him to render an opinion concerning one plaintiff based on the telephone interview, the plaintiff's answers to the written tests, and the various medical records and documents he reviewed. Defendant has not provided any evidence or authority suggesting that Dr. Pitman's procedures in this regard were improper or rendered his opinions unreliable. Particularly speculative is defendant's suggestion that Dr. Pitman could have been fooled into talking to someone else when he believed he was conducting the telephone interview of one plaintiff, given Dr. Pitman's review of that plaintiff's medical records, his eventual receipt of the written test answers, and his discussion with that person of incidents occurring at defendant school.

Defendant argues that Dr. Pitman's opinions are unreliable because he administered the standard version of one test to these plaintiffs instead of using the adolescent version of that test. Despite Dr. Pitman's testimony that he had never heard of the adolescent version of the test, defendant has failed to provide any evidence of the existence of that version, let alone any evidence or argument as to why the standard version could not be used for these plaintiffs given their ages. Nor did defendant in its reply brief attempt to refute plaintiff's argument that no such adolescent version exists (although defendant did not withdraw this argument). Accordingly, the Court rejects this basis for exclusion.

The Court also rejects Dr. Pitman's use of percentages in his impairment ratings as a basis for exclusion of his expert testimony. Again, defendant has failed provide any evidence or authority on the issue. Defendant had the opportunity to probe the bases for Dr. Pitman's percentages at his deposition, and defendant has not ...

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