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Bethlehem Area School District v. Diana Zhou

July 25, 2012

BETHLEHEM AREA SCHOOL DISTRICT,
v.
DIANA ZHOU,



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

MEMORANDUM

Defendant, Diana Zhou, filed a motion in limine to preclude the Bethlehem Area School District from calling its expert, Andrew M. Klein, and from using his revised report. I previously granted Zhou's motion in limine to prevent consideration of Mr. Klein's expert report and expert testimony at the summary judgment stage. See September 27, 2011 opinion and order (Dkt. Nos. 104 and 105) . I found that Mr. Klein improperly provided legal conclusions and opinions regarding Zhou's intent, but held that the District could nonetheless call Mr. Klein as an expert to testify to the IDEA processes and Ms. Zhou's use thereof if the District complied with my opinion and order.

This memorandum is filed to explain the reasons for my order of July 24, 2012, granting in part and denying in part Zhou's motion in limine. Because Mr. Klein's revised report does not meet the standards set forth for expert testimony, the District will not be permitted to admit his revised report or to call him as an expert witness, but Mr. Klein will be permitted to testify as a fact witness.

I. Standard For Expert Testimony

A witness may testify as an expert only where: "(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." Fed. R. Evid. 702. "The expert must base his testimony on properly grounded, well-reasoned and non-speculative evidence." Engers v. AT&T, No. 98cv3660, 2005 U.S. Dist. LEXIS 41693, *4 (D.N.J. Aug. 10, 2005) (citing Fed. R. Evid. 702 Advisory Committee Note (2000)).

To be reliable, the testimony "must be based on the 'methods and procedures of science' rather than on 'subjective belief or unsupported speculation'; the expert must have 'good grounds' for his or her belief." Calhoun v. Yamaha Motor Corp., U.S.A., 350 F.3d 316, 321 (3d Cir. 2003). To determine whether testimony is reliable, the Third Circuit has provided a list of relevant factors to consider:

(1) whether a method consists of a testable hypothesis; (2) whether the method has been subject to peer review; (3) the known or potential rate of error; (4) the existence and maintenance of standards controlling the technique's operation; (5) whether the method is generally accepted; (6) the relationship of the technique to methods which have been established to be reliable; (7) the qualifications of the expert witness testifying based on the methodology; and (8) the non-judicial uses to which the method has been put.

Id. at 321.

The District, as the proponent of the expert, has the burden of establishing the admissibility of Mr. Klein's testimony by a preponderance of the evidence. Padillas v. Stork-Gamco, Inc., 186 F.3d 412, 417-18 (3d Cir. 1999); see also, Fed. R. Evid. 702 Advisory Committee Note (2000).

II. Original and Revised Expert Reports

I rejected Mr. Klein's initial report. I found that he was retained for the improper purpose of providing a legal opinion, that he provided such legal opinions, and that he offered impermissible opinions on Zhou's intent. The District has since provided a revised report dated June 18, 2012 and Mr. Klein has been deposed on the content of that report.

Mr. Klein stated that in revising his report, he reviewed my September 2011 order and opinion and edited his prior report to conform to that order and opinion. He also reviewed the deposition transcript of Cynthia Leshinsky, the District's Special Education Supervisor. In addition, he performed "some research" to support the new paragraph on page ten of his revised report addressing the "industry norm" and corrected errors of math and verb tense. Klein Tr. at 289-90, 311-12.

III. The"Industry Norm"

In rejecting Mr. Klein's original report, I specifically noted that he "fail[ed] to explain the 'industry norm'" and failed "to articulate the relevant standards or their sources." Although Mr. Klein again fails to define the "industry norm" in his report, he testified that the industry to which he is referring is the ...


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