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Bethlehem Area School District v. Diana Zhou

September 27, 2011

BETHLEHEM AREA SCHOOL DISTRICT,
v.
DIANA ZHOU,



The opinion of the court was delivered by: Ditter, J.

MEMORANDUM

Defendant Diana Zhou has filed a motion in limine to preclude the Bethlehem Area School District from calling its expert, Andrew M. Klein, and from using his report. For the reasons that follow, I will grant Ms. Zhou's motion, but I will permit Mr. Klein to testify at trial regarding the IDEA processes if he provides a revised report addressing this scope of testimony and the District makes him available to Ms. Zhou for a second deposition.

I. BACKGROUND

The District alleges that Ms. Zhou presented a series of accusations for improper purposes and in bad faith and seeks attorneys' fees under the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400, et seq. ("IDEA"). The District retained Mr. Klein as an expert and he submitted an expert report. Ms. Zhou asserts that Mr. Klein's report and testimony are inadmissible because an expert cannot provide legal conclusions or testify to intent and because he lacks sufficient facts and a reliable method for assessing intent.

II. DISCUSSION

A. Improper Legal Conclusions And Opinion on Intent

Mr. Klein states that he was retained "to offer an opinion regarding whether the parent, Diana Zhou, has engaged in a course of conduct which would entitle the Bethlehem Area School District to recover attorneys' fees under the provisions of [the IDEA]." (Klein Report at 1.) At the start of his "Discussion, Impressions and Conclusions" section, he states: "[T]here is little question or doubt that [Zhou's] motives fit within the confines and parameters [sic] of IDEA as relates to harassing the school district and increasing the cost of litigation in a needless fashion." (Id. at 9 (emphasis added).) He ultimately concludes his report, stating "it is my professional opinion to a reasonable certainty that Ms. Diana Zhou repeatedly and continuously filed for hearings, mediations, OCR complaints and continuing court proceedings for the sole purpose of harassing the Bethlehem Area School District and driving up their costs needlessly to defend all of these actions." (Id. at 12 (emphasis added).) Mr. Klein's report also states that Ms. Zhou "abnegated her responsibility as a parent under the IDEA by litigating claims for which she can obtain no relief" and that her "ulterior motives . . . were to wear down the district via complaints and causes of action for an improper purpose." (Id. at 11-12. (emphasis added)).

1. Legal Conclusions

"[I]t is not permissible for a witness to testify as to the governing law." United States v. Leo, 941 F.2d 181, 196 (3d Cir. Pa. 1991). See also, Holman Enterprises v. Fidelity & Guaranty Ins. Co., 563 F. Supp. 2d 467, 472 (D.N.J. 2008) (noting the "prohibition on experts testifying as to their own legal conclusions is so well established that it is often deemed a basic premise or assumption of evidence law -- a kind of axiomatic principle"). Experts "may not . . . apply the resulting law to the facts of [a] case to draw a legal conclusion. In essence, the experts may testify as to their factual conclusions so long as they do not offer a legal opinion as to the legal implications of those conclusions." Langbord v. United States Dep't of the Treasury, No. 06-CV-05315, 2009 U.S. Dist. LEXIS 40083, *27-28 (E.D. Pa. May 7, 2009).

"While courts sometimes accept expert evaluations of a student in IDEA actions, these evaluations should not present legal analysis." Lebron v. N. Penn Sch. Dist., 769 F. Supp. 2d 788, 794-795 (E.D. Pa. 2011) (citing Moorestown Twp. Bd. of Educ. v. S.D., No. 10-0312, 2010 U.S. Dist. LEXIS 109856, at *12-13 (D.N.J. Oct. 15, 2010) (rejecting expert evidence in IDEA action insofar as the testimony constituted legal analysis)).

Mr. Klein's self-described purpose for his report is to reach a legal conclusion and he did just that. His findings that Ms. Zhou is acting outside the confines of the IDEA, that she cannot obtain relief, and that she has acted for an improper purpose under the provisions of the IDEA are all impermissible legal conclusions.

2. Expert Cannot Testify to Intent

Ms. Zhou argues that Mr. Klein's report and testimony are inadmissible because intent is not a proper subject of expert testimony. She is correct. "'[T]he question of intent is a classic jury question and not one for experts.'" Robinson v. Hartzell Propeller, Inc., 326 F. Supp. 2d 631, 648 (E.D. Pa. 2004) (quoting and following the reasoning of In re Diet Drugs (Phentermine, Fenfluramine, Dexfenfluramine) Products Liability Litig., No. 1203, 2000 U.S. Dist. LEXIS 9037 (E.D. Pa. June 20, 2000)). See also, Gallatin Fuels, Inc. v. Westchester Fire Ins. Co., 410 F. Supp. 2d 417, 423 (W.D. Pa. 2006) ("An expert simply is not in any better position than the jury to assess another's subjective intent.").

Mr. Klein conceded that he was at least "partially" retained to assess Ms. Zhou's intent, in addition to her behavior. (Klein Tr. at 487:21-48:11.) His report undeniably reaches conclusions as to Ms. Zhou's intent. For example, he found that her "sole purpose" was to harass the District and drive up its costs and that her "ultimate motivation" was "a demand that the ...


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