United States District Court, D. Kansas
C.F.B., a minor, by and through her next friend TERRI E. BAKER, Plaintiff,
SHERIFF CALVIN HAYDEN, et al., Defendants.
MEMORANDUM & ORDER
MURGUIA UNITED STATES DISTRICT JUDGE.
C.F.B., a minor, by and through her grandmother and next
friend, Terri E. Baker, brings this action against Johnson
County Sheriff Calvin Hayden, Lieutenant Thomas Reddin,
Sergeant Christopher Mills, and Deputy Travis Turner.
Plaintiff claims that defendants deprived her of her civil
rights under 42 U.S.C. § 1983 when members of the
Johnson County Sheriff's Office illegally seized her from
her grandfather's driveway. The matter is now before the
court on defendants' Motion to Exclude or Limit
Plaintiff's Expert Witness and Report (Doc. 112).
Defendants seek to exclude the testimony and report of
plaintiff's expert, Adrienne Dreher Benson, under
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579
(1993). For the reasons set forth below, the court denies
September 2, 2015, defendants Deputy Travis Turner, Sergeant
Christopher Mills, and Lieutenant Thomas Reddin arrived at
the home of Linus and Terri Baker to serve a temporary
Protection from Abuse Order (“PFA”) on the
Baker's daughter, Maggie McCormick. A judge in Wyandotte
County, Kansas granted Maggie's estranged husband, Ryan
McCormick, a temporary PFA against Maggie. Within the order,
the judge granted Ryan temporary sole custody of the
couple's child, S.F.M.
defendants arrived at the Baker's home, they encountered
Linus Baker in the driveway with plaintiff, who is his
granddaughter and Maggie's other child with another man.
Neither Maggie nor S.F.M. were outside. Defendants informed
Linus Baker they had a PFA and that they needed to speak with
Maggie. When Linus told them to leave, Sgt. Mills responded,
“we're not doing that, I've got a court order,
we're here to take [S.F.M.] . . . I've got a court
order, she's going with us.”
continued to demand that the officers leave, and Sgt. Mills
insisted that he had “a protection from abuse order
granting sole custody to the plaintiff.” Baker began to
retreat up the driveway and Sgt. Mills followed him and
approached plaintiff, who was standing nearby. Sgt. Mills
asked plaintiff, “are you [S.F.M.]? Come here
sweetheart.” As Sgt. Mills reached down to pick up
plaintiff, Baker began yelling “that is not
[S.F.M.]!” Plaintiff began to cry and scream for her
mother as soon as Sgt. Mills picked her up. Baker continued
to yell at Sgt. Mills to “give me that baby, give me
[C.F.B.].” Sgt. Mills proceeded to carry plaintiff down
the driveway noting he was going to “check with the
parents” presumably about the identity of the child.
Sgt. Mills carried plaintiff off the driveway and took her to
a van where Ryan was parked with his mother. Sgt. Mills asked
Ryan if plaintiff was S.F.M. to which Ryan responded
“no, [S.F.M.] is a boy.” Sgt. Mills then carried
plaintiff back up the driveway. Baker grabbed plaintiff out
of his arms and carried her up the driveway, continuing to
demand that the officers get off his property.
filed the present suit against defendants for violating her
Fourth Amendment right against unreasonable seizures. As part
of the litigation, plaintiff was evaluated by Adrienne Dreher
Benson, a Licensed Professional Counselor. Benson earned her
master's degree in licensed counseling at the Denver
Seminary in 2006. She held a license in Colorado-although
there is some confusion as to what license she held.
Defendants allege that after graduating with her master's
degree, she was a licensed Registered Psychotherapist in
Colorado from March 2006 to June 2007. Between 2006 and 2010,
Benson worked sporadically, occasionally doing contract work
for schools while she stayed at home with her children. At
some point after 2006, she relocated to Kansas City. She
allowed her Colorado license to lapse while she pursued her
Missouri license, which she received in 2012. In order to get
licensed in Missouri, Benson did postgraduate work at
Rockhurst and completed 2, 000 supervised hours.
about six months between 2014-2015, Benson was hired by the
Pembroke School to work with a second-grade student who had
suffered from sexual-abuse related trauma. She has some
experience evaluating children for Post-Traumatic Stress
Disorder (“PTSD”). Benson also formed a private
counseling practice in which she sees approximately 10-15
clients per week. She has testified in child custody cases
and has worked as a therapist with young children since 2006.
met with plaintiff twice for approximately 45 minutes each
time. She also interviewed Linus and Terri Baker, reviewed
the video of the September 2, 2015 incident, and reviewed
plaintiff's educational and medical records. Based on her
evaluation, Benson concluded that plaintiff shows signs of
PTSD related to the September 2, 2015 incident.
now move to exclude or limit Benson's testimony, arguing
she is not qualified to render an expert opinion concerning
any diagnosis pertaining to plaintiff's trauma, and
because she did not reliably apply the principles and methods
generally accepted for the evaluation and diagnosis of PTSD.
Rule of Evidence 702 determines the admissibility of expert
testimony. Daubert, 509 U.S. at 588 (1993). Federal
Rule of Evidence 702 states that:
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.
rule reflects the court's gatekeeping function, which
requires the court to determine whether expert testimony will
assist the trier of fact. Kumho Tire Co. v.
Carmichael, 526 U.S. 137, 147 (1999). The proponent of
expert testimony bears the burden of showing that the
testimony is admissible. United States v. Nacchio,
555 F.3d 1234, 1241 (10th Cir. 2009). However, the ...