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I.D. v. CUMBERLAND VALLEY SCHOOL DISTRICT

October 5, 2005.

I.D., and T.D. and A.D., individually and as parents and next friends of I.D., Plaintiffs,
v.
CUMBERLAND VALLEY SCHOOL DISTRICT, Defendant.



The opinion of the court was delivered by: WILLIAM CALDWELL, Senior District Judge

MEMORANDUM

I. Introduction

We are considering two motions in limine filed by the Defendant, Cumberland Valley School District. The first motion seeks to exclude the testimony and expert report of Andrew M. Kline based primarily on the factors set out in the Supreme Court's opinion in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). The second motion seeks to exclude the testimony of Dr. Peter J. Meyer and Mr. Kline (should we deny the first motion) as it relates to any alleged harassment suffered by I.D.

  II. Discussion

  A. Daubert motion

  Federal Rule of Evidence 702, pertaining to expert testimony, provides that: [i]f 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.

 "In Daubert, [the Supreme Court] held that Federal Rule of Evidence 702 imposes a special obligation upon a trial judge to `ensure that any and all scientific testimony . . . is not only relevant, but reliable.'" Kumho Tire Company, Ltd. v. Carmichael, 526 U.S. 137, 147, 119 S. Ct. 1167, 1174, 143 L. Ed. 2d 238, 249 (1999) (citing Daubert, 509 U.S. at 589, 113 S. Ct. at 2795, 125 L. Ed. 2d at 480). The Court in Kumho extended this "general `gatekeeping' obligation" to expert testimony based on "technical" and "other specialized knowledge." Kumho, 536 U.S. at 141, 119 S. Ct. at 1171, 143 L. Ed. 2d at 246.

  The Third Circuit, relying on Daubert, has interpreted Rule 702's "restrictions on expert testimony" as falling into three categories: "qualification, reliability and fit." Schneider v. Fried, 320 F.3d 396, 404 (3d Cir. 2003). Qualifications, or "specialized expertise," should be evaluated "liberally" as "a broad range of knowledge, skills, and training qualify an expert." Id. (citation and internal quotation omitted). A potential expert's testimony is reliable if there are "good grounds" supporting his conclusions. Id. A trial court has considerable latitude in determining how to evaluate the reliability of a potential expert's opinion. Kumho, 536 U.S. at 152, 119 S. Ct. at 1176, 143 L. Ed. 2d at 252-253. Finally, in order for a potential expert's testimony to be "fit" for a particular case, it "must be relevant for the purposes of the case and must assist the trier of fact." Schneider, 320 F.3d at 404. The burden is on the proponent of the testimony, in this case the Plaintiffs, to establish admissibility by a preponderance of the evidence. Padillas v. Stork-Gamco, Inc., 186 F.3d 412, 417-8 (3d Cir. 1999).*fn1

  The Defendant raises three challenges to the admissibility of Mr. Kline's testimony and report. First, the District argues that Mr. Kline is not qualified to testify as an expert in this case. The Defendant also contends that Mr. Kline's report and testimony are not reliable. Finally, the District maintains that Mr. Kline's report contains improper legal conclusions and opinions.

  In support of its first argument, the District asserts that Mr. Kline does not have sufficient training or experience with Tourette's Syndrome or Obsessive Compulsive Disorder (OCD) to assist the trier of fact in making a decision. The Defendant argues that because he lacks sufficient training or experience with these disorders, Mr. Kline is not qualified to offer an opinion on an appropriate educational program for a person suffering from those disorders. The Plaintiffs contend that Mr. Kline is more than qualified to offer an opinion on compliance with the Individuals with Disabilities Education Act (IDEA) and Rehabilitation Act, regardless of their particular disorder. To support their argument Plaintiffs rely primarily on Mr. Kline's extensive experience as a Special Education Due Process Hearing Officer for the state of Pennsylvania.

  The "specialized knowledge" required of an expert by Rule 702 "`can be practical experience as well as academic training and credentials.'" Waldorf v. Shuta, 142 F.3d 601, 625 (3d Cir. 1998) (citing American Tech. Resources v. United States, 893 F.2d 651, 656 (3d Cir. 1990); see also Betterbox Communications Ltd v. BB Technolognies, Inc., 300 F.3d 325, 327 (3d. Cir. 2002). While the knowledge requirement is interpreted liberally, "at a minimum, a proffered expert witness . . . must possess skill or knowledge greater than the average layman. . . ." Waldorf, 142 F.3d at 625 (citing Aloe Coal Co. v. Clark Equip. Co., 816 F.2d 110, 114 (3d. Cir. 1987); see also Betterbox, 300 F.3d at 328. ". . . [O]rdinarily an otherwise qualified witness is not disqualified merely because of a lack of academic training." Waldorf, 142 F.3d at 626.

  Mr. Kline's curriculum vitae indicates that he has a Masters degree in Education and a Post-Masters and Special Education Certification as a supervisor of special education. (Doc. 50, Def. Motion in Limine, Ex. A, p. 1). He has approximately twenty-six years of experience as a special education administrator. (Id.). From 1971-1974, he worked at a number of educational institutions for emotionally disturbed adolescents where he participated in therapeutic education with the children. (Id. at pp. 1-2). Mr. Kline was a Pennsylvania Special Education Due Process Hearing Officer for approximately seventeen years. (Id. at p. 2). He is certified by the Pennsylvania Department of Education as a supervisor of special education and as a teacher of the mentally and physically disabled. (Id.). As a program auditor for the Pennsylvania Department of Special Education, he approved private schools in special education and audited special education compliance and quality assurance. (Id. at p. 3). Mr. Kline has presented approximately seventeen major topical presentations since 1972 in the areas of special education and the legal rights of children with special needs in Pennsylvania. (Id. at pp. 3-4).

  At his deposition, Mr. Kline testified that he has attended workshops and seminars addressing Tourette's Syndrome, with the most recent being in the mid-1990s (approximately 1995). (Doc. 50, Def. Motion in Limine, Ex. C, pp. 11-12). His most recent training in OCD was in the 1980s. (Id. at p. 12). Mr. Kline supervised children with both Tourette's Syndrome and OCD while he was an administrator. (Id. at p. 11, 13). During his time as a due process hearing officer for Pennsylvania, Mr. Kline heard cases involving students with Tourette's Syndrome. (Id. at p. 11). He also worked with adolescent OCD patients while working at various psychiatric hospitals in the early 1970s. (Id. at p. 12-13).

  Given his seventeen years of experience as a hearing officer with the Pennsylvania Department of Education, his approximately twenty-six years of experience as a special education administrator, his state certifications, and his other special education experiences, we find that Mr. Kline "possess[es] skill or knowledge greater than the average layman" in IDEA and Rehabilitation Act compliance. Specifically, his work as a hearing officer required him to make decisions regarding the adequacy of education plans under both acts. The Defendant's argument appears to be that Mr. Kline must not only be an expert in IDEA and Rehabilitation act compliance, but also an expert in Tourette's Syndrome and OCD. However, the District has offered no evidence to show that this is required. Additionally, while his academic training in I.D.'s disorders may be slim, Mr. Kline testified that he supervised special education programs that included children diagnosed with Tourette's Syndrome and OCD and that he heard cases involving children with Tourette's Syndrome as a hearing officer. Taking all of Mr. Kline's experience into consideration, we find that he is qualified to testify as an ...


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