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.
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 ...