United States District Court, M.D. Pennsylvania
October 5, 2005.
I.D., and T.D. and A.D., individually and as parents and next friends of I.D., Plaintiffs,
CUMBERLAND VALLEY SCHOOL DISTRICT, Defendant.
The opinion of the court was delivered by: WILLIAM CALDWELL, Senior District Judge
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.
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.
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 expert in IDEA and Rehabilitation Act
compliance. See, e.g. Knight v. Otis Elevator Co., 596 F.2d 84,
87-88 (3d Cir. 1979) (holding that the general knowledge that an
engineer had about machine safety qualified him as an expert even
though he did not have specific knowledge about the device in
The Defendant's second argument is that the conclusions reached
by Mr. Kline in his report are unreliable because he failed to
interview I.D. or read I.D.'s deposition, interview I.D.'s
parents prior to authoring the report, observe I.D. in the
classroom, interview any District employees, or interview any
students who are alleged to have bullied or harassed I.D. The
Plaintiffs respond by pointing out that the District has not
explained how Mr. Kline's opinion may have been changed if he had
reviewed the factors listed, what information he may have gained from the interviews, or how conducting the
interviews would be germane to determining the appropriateness of
the District's response.
". . . [A] trial judge must have considerable leeway in
deciding in a particular case how to go about determining whether
particular expert testimony is reliable." Kumho,
526 U.S. at 152, 119 S. Ct. at 1176, 143 L. Ed. 2d at 252. In cases where the
testimony does not involve scientific evidence, as in the instant
case, the factors identified by the Supreme Court in Daubert
should only be used where they are "reasonable measures of the
reliability of expert testimony." Id. In such cases, a more
appropriate measure of an expert's reliability may be his
"`personal knowledge or experience.'" Betterbox,
300 F.3d at 329 (citation omitted).
Mr. Kline's report indicates that he reviewed: (1) the Federal
Complaint; (2) the Defendant's answer to the Federal Complaint;
(3) the transcript of the due process hearing held December 18,
2002, and January 13, 2003; (4) the District's exhibit book for
the due process hearing; (5) the parent's exhibit book for that
hearing; (6) I.D.'s records from the 21st Century Cyber Charter
school; (7) Dr. Peter J. Meyer's July 5, 2004 psychiatric impact
statement; (8) newspaper articles regarding updated discipline
policies in the Cumberland Valley School District; (9) the
District's newly adopted bullying policy; (10) the Due Process Hearing Officer's decision of
January 26, 2003; (11) and the Special Education Appeals Panel
decision of March 10, 2003. First, the transcript of the due
process hearing included the testimony of I.D.'s parents and the
school administrators. The Defendant has failed to establish what
further information Mr. Kline may have needed from these
individuals to offer a reliable opinion. Second, we note that it
would have been impossible for Mr. Kline to observe I.D. in the
classroom because by the time he was brought into the case, I.D.
was no longer at Cumberland Valley High School. (Doc. 50, Def.
Motion in Limine, Ex. C, p. 37). Third, although Mr. Kline did
not interview or observe I.D., or interview students who
allegedly harassed I.D., his opinion is based upon:(1) the same
information that was available to the Due Process Hearing
Officer; and (2) additional information that may not have been
available to the hearing officer. We fail to see how Mr. Kline's
reliance on these resources is an insufficient basis for his
opinion. Finally, as we previously discussed, Mr. Kline has
extensive experience in IDEA and Rehabilitation Act compliance.
He testified at his deposition that he relied upon not only the
records he reviewed, but his experiences in the field in forming
his opinion. (Id. at p. 24). Based on Mr. Kline's experience
and the information that he reviewed, we cannot find that his
opinion is unreliable. The District's final argument is separate from its arguments
under Daubert. The Defendant maintains that Mr. Kline's report
consists of improper legal opinions and conclusions. As a result,
the Defendant contends that his report and testimony should be
excluded. The Plaintiffs argue that the testimony and report are
offered to assist the trier-of-fact in determining what steps the
District should have taken in providing I.D. with a free and
appropriate public education (FAPE). The Plaintiffs maintain that
the report is not offered for the legal conclusion that the
District failed to offer I.D. a FAPE.
We agree with the Defendant that, as a general principle,
experts are not permitted to offer testimony on issues of law.
Whitmill v. City of Philadelphia, 29 F.Supp.2d 241, 246
(E.D.Pa. 1998). The District contends that Mr. Kline offers
opinions on either pure questions of law or on mixed questions of
law and fact that. However, while the Defendant has cited
numerous cases to support the proposition that those types of
opinions are not proper in an expert's testimony, it has offered
no argument to support its assertions that Mr. Kline's opinions
are, in fact, improper. We have reviewed Mr. Kline's report and
found just one instance where his opinion constitutes a legal
conclusion. In the first sentence of page 9, Mr. Kline offers the opinion
that the District denied I.D. a FAPE for his tenth grade year.
(Doc. 50, Def. Motion in Limine, Ex. B, p. 9). This opinion is a
conclusion as to the District's legal responsibility to I.D.
While Mr. Kline may state his opinions as to the appropriateness
of the services offered to I.D., he cannot state conclusions as
to whether laws were violated. See, e.g. Schieber v. City of
Philadelphia, 2000 WL 1843246 at *8 (E.D.Pa. 2000) (holding that
while an expert witness can testify to his opinion that police
officers were not adequately trained to enter homes in exigent
circumstances, he could not testify that there actions were
constitutional violations). This one instance, however, can be
corrected by the Plaintiffs prior to trial by redacting the
improper opinion from Mr. Kline's report. Of course, the
Defendant may raise any appropriate objections to Mr. Kline's
trial testimony should the need arise.
B. Harassment motion
The Defendant's second motion in limine seeks to exclude the
testimony and reports of Dr. Meyer and Mr. Kline to the extent
that they refer to, or base their opinions on, the alleged
harassment of I.D. The District argues that since we have already
dismissed any claim involving harassment, Dr. Meyer and Mr.
Kline's opinions regarding the alleged harassment are not relevant. The Plaintiffs argue that Dr. Meyer and Mr. Kline's
opinions are relevant because although we dismissed the
Plaintiffs' claim of a hostile educational environment, there are
still numerous claims left which are grounded in the alleged
We must agree with the Plaintiffs. Federal Rule of Evidence 401
provides that evidence is relevant if it has "any tendency to
make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than
it would be without the evidence." We dismissed the hostile
educational environment claim at the summary judgment stage.
However, this was not the only claim premised on the alleged
harassment of I.D. The alleged harassment I.D. suffered forms the
basis for the Plaintiffs' claims of denial of a FAPE and
discrimination under the Rehabilitation Act and the American's
with Disabilities Act (ADA) and for a statutory violation of the
IDEA, Rehabilitation Act, and the ADA. While the facts may not
have supported a claim for a hostile educational environment,
they may still support the Plaintiffs' alternative theories of
liability. As such, the testimony of Dr. Meyer and Mr. Kline is relevant to the
remaining issues in the case. Thus, we will deny the Defendant's
motion and enter an appropriate order. ORDER
AND NOW, this 5th day of October, 2005, it is ordered that:
1. The Defendant's motion in limine to exclude the
testimony and expert report of Andrew M. Kline (doc.
49) is granted in part and denied in part. Consistent
with the attached memorandum, the Plaintiffs shall
redact the appropriate portions of Mr. Kline's expert
report prior to its submission at trial.
2. The Defendant's motion to exclude the testimony
and reports of Dr. Peter J. Meyer and Andrew M. Kline
(doc. 51) is denied.
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