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R.D v. Shohola, Inc.

United States District Court, M.D. Pennsylvania

August 13, 2019

R.D., Plaintiff,
SHOHOLA, INC., Defendant.


          Martin C. Carlson United States Magistrate Judge.

         I. Factual Background

         In the instant case, we are now called upon to consider the degree to which science can usefully help inform a jury's consideration of the vagaries of the human mind and the mysteries of human recollection of events.

         This case involves allegations of negligence by the defendant, Shohola, Inc., during a July 2007 Cape Cod camping excursion conducted by the defendant. In the course of this excursion, four minors-N.S., R.D., G.M., and E.J.[1]-were placed together in a tent without any immediate, direct adult supervision. What transpired in that tent twelve years ago lies at the heart of this lawsuit. As to these events, the witnesses provide accounts that are to some degree inconsistent with one another, and the statements of some witnesses contain internal contradictions and inconsistencies. Thus, with respect to the critical events in this case, we are presented with an illustration of what is referred to as the Rashomon effect- divergent recollections of a singular event by witnesses to that event. For example, the plaintiff, R.D., has at various times described a sexual assault which he alleges he suffered at the hands of an older boy, N.S., in this tent, but as the defendant notes, R.D.'s descriptions of the precise nature of this assault and his assailant have varied over time. E.J., another minor who was in the tent, has provided a recorded statement in which he described a sexually charged game of truth or dare involving himself and N.S., although E.J.'s description of this episode has varied in some material details from R.D.'s narrative. The third boy in the tent, G.M., in turn, has disclaimed any direct knowledge of any of these events involving N.S., R.D. and E.J., but has also declined to actively dispute their accounts of these events.

         As a result of this episode, R.D. alleges that he was the victim of sexual assault and suffered both physical and psychological injuries. The psychological harms that R.D. alleges were either caused by, or exacerbated by, this incident include post-traumatic stress disorder (PTSD), borderline personality disorder, bipolar disorder, and depression. R.D. is now pursuing a negligence action against Shohola, arguing that in 2007, Shohola was negligent in the placement of an older teen, N.S., in this tent with younger boys, and in failing to more carefully oversee these youths as they slept together since the danger of potential sexualized, non-consensual and predatory behavior was readily foreseeable in this setting, and was in fact foreseen by Shohola counsellors.

         Given the claims and injuries alleged in this case by R.D., the workings of the human mind are critical to an informed evaluation of this case by the jury. Thus, in this case, the jury may be called upon to consider the vagaries of human memory, the potential effects of trauma on recollection, and two phenomena relating to recollection: repressed memories, that is recollections which have been subconsciously blocked due to trauma, and confabulation, a phenomenon in which individuals can experience sincerely held, but false or distorted recollections. It is against this factual backdrop that we consider various motions in limine which seek to shape, define and limit the expert psychological evidence which may be presented to the jury. (Docs. 174, 203 and 253.)

         These motions seek pre-trial rulings addressing the proffered testimony of several medical witnesses. First, Shohola has filed two motions challenging the proposed anticipated testimony of Dr. Roger Pittman, an expert witness retained by the plaintiff. (Docs. 203, 253.) As described by the parties and as we understand it, Dr. Pittman has evaluated R.D., conducted a battery of tests on R.D., and reviewed documents relating to R.D. and this case. As a result of these clinical encounters, evaluations and tests, Dr. Pittman may be prepared to testify to a range of matters. For example, Dr. Pittman could potentially testify that he has diagnosed R.D. as suffering from PTSD, bi-polar and borderline personality disorders, as well as depression. The plaintiff also proposes that Dr. Pittman is prepared to testify that sexual trauma can cause PTSD and contribute to the onset or exacerbation of these other disorders. In addition, it appears that the plaintiff may endeavor to elicit testimony from Dr. Pittman that R.D.'s symptoms and diagnoses are consistent with PTSD caused by sexual violence. Finally, the defense motions in limine raise a concern that Dr. Pittman may attempt to go even further in his testimony, in a way which could be seen as vouching for the credibility of R.D.'s account of his 2007 encounter with N.S., by specifically testifying that N.S.'s sexual assault caused R.D.'s PTSD, and contributed to the onset of his other emotional disorders. According to the defendant, many, if not all, of these lines of inquiries would be inappropriate and would overstep the bounds of proper expert testimony.

         The plaintiff, in turn, has filed a motion in limine to exclude the testimony of two defense experts, Dr. Elizabeth Loftus and Dr. Renee Sorrentino. (Doc. 174.) Dr. Loftus is proffered as an expert witness who can testify to the inaccuracy and vagaries of human recollection. Dr. Sorrentino, in turn, has been proffered as an expert witness who could testify regarding whether sexual violence by N.S. was specifically foreseeable.[2] According to the plaintiff, this proposed expert testimony is speculative, lacks scientific support, invades the province of the jury, and should, therefore, be excluded from the trial of this case.

         Presented with these motions, our task is to define the degree to which scientific expert testimony on the working of the mind, and the factors which color and shape human recollection, would aid the jury in its search for the truth while ensuring that this expert testimony does not improperly intrude upon the cardinal function of the jury, which is to assess witness credibility. We undertake this task guided by the analytical paradigm for the assessment of expert opinions prescribed by Rule 702 of the Federal Rules of Evidence and the United States Supreme Court in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), which call upon us to perform a gatekeeping function when evaluating proposed expert testimony and consider: “(1) the qualifications of the expert, (2) the reliability of the process or technique the expert used in formulating the opinion, and (3) the ‘fit' between the opinion and the facts in dispute.” Buzzerd v. Flagship Carwash of Port St. Lucie, Inc., 669 F.Supp.2d 514, 519 (M.D. Pa. 2009) (citing In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 741-47 (3d Cir. 1994) (“Paoli II”)).

         While the resolution of these issues rests in the sound discretion of the court, given the constellation of factual matters which Daubert invites us to consider, oftentimes “[i]t would appear that the most efficient procedure that the district court can use in making the reliability determination is an in limine hearing.” United States v. Downing, 753 F.2d 1224, 1241 (3d Cir. 1985). That is the course we will follow here. However, as a guide to the parties in preparation for this hearing, we write to discuss what we believe to be the proper potential scope of expert testimony in this case.

         II. Discussion

         A. Motions in Limine, Rule 702, and the Rules Governing Expert Testimony

         Any consideration of the proper scope of expert witness testimony begins with Rule 702 of the Federal Rules of Evidence, which provides as follows:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) that testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and ...

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