United States District Court, M.D. Pennsylvania
C. CARLSON UNITED STATES MAGISTRATE JUDGE.
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.-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 some internal contradictions and
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, bi-polar 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
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. It was against this
factual backdrop that we considered various motions in
limine which sought to shape, define and limit the
expert psychological evidence that may be presented to the
jury. (Docs. 174, 203, and 253.) These motions sought
pre-trial rulings addressing the proffered testimony of
several medical witnesses. In particular, the motions sought
pre-trial rulings regarding the admissibility of the
testimony of two expert witnesses, Dr. Roger Pitman and Dr.
part, Shohola filed two motions challenging the proposed
anticipated testimony of Dr. Roger Pitman, an expert witness
retained by the plaintiff. (Docs. 203, 253.) Dr. Pitman
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. Pitman was prepared to testify to a range of matters. For
example, it was proffered that Dr. Pitman could testify that
he diagnosed R.D. as suffering from PTSD, bi-polar and
borderline personality disorders, as well as depression. The
plaintiff also proposed that Dr. Pitman would be prepared to
testify that sexual trauma can cause PTSD and substantially
contribute to the onset or exacerbation of these other
disorders. In addition, the plaintiff was prepared to elicit
testimony from Dr. Pitman that R.D.'s symptoms and
diagnoses are consistent with PTSD caused by sexual violence,
and more specifically testify that the clinical cause of
R.D.'s PTSD was N.S.'s 2007 sexual assault of the
plaintiff while on this Camp Shohola excursion. 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.
plaintiff, in turn, filed a motion in limine to
exclude the testimony of a defense expert, Dr. Elizabeth
Loftus. (Doc. 174.) Dr. Loftus had never examined or treated
R.D. but was proffered as an expert witness who can testify
to the inaccuracy and vagaries of human
recollection. 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.
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)
we recognize that 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, we are mindful that 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).
Accordingly, on November 7, 2019, we conducted a
Daubert hearing in this case focusing on the
proffered testimony of Dr. Pitman and Dr. Loftus, as well as
the testimony of Dr. Mack. We also invited and received
supplemental briefs from the parties outlining their
respective positions regarding these expert witnesses. (Docs.
353 and 354). We have carefully considered the written
submissions of the parties, as well as the testimony and
exhibits presented at this hearing.
conducted this review, for the reasons set forth below, we
will permit testimony by Dr. Pitman, as described below, and
will allow Dr. Mack to testify consistent with his expert
report, but we will exclude the testimony of Dr. Loftus.
Rules Governing Expert Testimony
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
(d) the expert has reliably applied the principles and
methods to the facts of the case.
Evid. 702. Following the Supreme Court's guidance in
Daubert, the United States Court of Appeals for the
Third Circuit has explained that the Rule provides for a
“trilogy of restrictions on expert testimony:
qualification, reliability and fit.” Calhoun v.
Yamaha Motor Corp., 350 F.3d 316, 321 (3d Cir. 2003).
Under the Rule, the trial judge acts as a
“gatekeeper” to ensure that before it is
presented to a jury, expert testimony is “both relevant
and reliable.” Buzzerd v. Flagship Carwash of Port
St. Lucie, Inc., 669 F.Supp.2d 514, 519 (M.D. Pa. 2009)
(citing Daubert, 509 U.S. at 589). In cases where a
party objects to the admissibility to proffered expert
opinion testimony, the court must examine: “(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.” Id. (citing In re
Paoli R.R. Yard PCB Litig., 35 F.3d 717, 741-47 (3d Cir.
1994) (“Paoli II”)). In other words, a
qualified expert's “testimony must [(1)] be based
on sufficient facts and data; (2) must be the product of a
reliable methodology; and (3) must demonstrate a relevant
connection between that methodology and the facts of the
case.” Jaasma v. Shell Oil Co., 412 F.3d 501,
513 (3d Cir. 2005).
qualified to provide expert testimony, an expert must possess
sufficient qualifications in the field, but this requirement
is not overly restrictive. Thus, the Third Circuit has
“eschewed imposing overly rigorous requirements of
expertise and [has] been satisfied with more generalized
qualifications.” Paoli II, 35 F.3d at 741. In
other words, “an expert's qualifications should be
assessed ‘liberally,' recognizing that ‘a
broad range of knowledge, skills, and training qualify an
expert as such.'” Thomas v. CMI Terex
Corp., Civil No. 07-3597, 2009 WL 3068242, at *5 (D.N.J.
Sept. 21, 2009) (quoting Paoli II, 35 F.3d at 741).
An expert will not be excluded “simply because [the
court] does not deem the proposed expert to be the best
qualified or because the proposed expert does not have the
specialization that the court considers most
appropriate.” Holbrook v. Lykes, Bros. S.S.
Co., 80 F.3d 777, 782 (3d Cir. 1996). The focus,
instead, is on whether the qualifications that an expert does
have provide a foundation for the witness to testify
meaningfully on a given matter. See Buzzerd, 669
F.Supp.2d at 522 (citing Rose v. Truck Centers,
Inc., 611 F.Supp.2d 745, 749 (N.D. Ohio 2009)
(“The issue with regard to expert testimony is not the
qualifications of a witness in the abstract, but whether
those qualifications provide a foundation for a witness to
answer a specific question.”) (quoting Berry v.
City of Detroit, 25 F.3d 1342, 1351 (6th Cir. 1994)).
an expert is qualified to give opinion testimony in a given
area, the testimony must also be reliable. Accordingly, a
court need not “admit opinion evidence that is
connected to existing data only by the ipse dixit of
the expert. A court may conclude that there is simply too
great an analytical leap between the data and the opinion
proffered.” Gen. Elec. Co. v. Joiner, 522 U.S.
136, 146 (1997). In determining whether proposed testimony is
sufficiently reliable, courts are to consider the following
(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.
Paoli II, 35 F.3d at 742 n.8. These factors
“may or may not be pertinent in assessing reliability,
depending on the nature of the issue, the expert's
particular expertise, and the subject of his
testimony.” Kumho Tire Co. v. Carmichael, 526
U.S. 137, 147 (1999) (citation omitted); accord
Kannankeril, 128 F.3d at 806-07 (“[T]hese factors
are neither exhaustive nor applicable in every case.”).
Accordingly, the inquiry into reliability is flexible and
depends upon the facts of each particular case. Kumho
Tire Co., 526 U.S. at 150.
Third Circuit has noted that the reliability standard is
“not intended to be a high one” and is not
designed to be applied in a way that “requires the
plaintiffs ‘to prove their case twice - they do not
have to demonstrate to the judge by a preponderance of the
evidence that the assessments of their experts are correct,
they only have to demonstrate by a preponderance of the
evidence that their opinions are reliable.'”
Oddi v. Ford Motor Co., 234 F.3d 136, 145 (3d Cir.
2000) (quoting Paoli II, 35 F.3d at 743).
Noting that this is “a very important distinction,
” id., the Third Circuit explained that the
proper test is whether the “particular opinion is based
on valid reasoning and reliable methodology.”
Id. (quoting Kannankeril, 128 F.3d at 806).
However, the court was careful to emphasize that
“conclusions and methodology are not entirely distinct
from one another, ” id. (quoting
Joiner, 522 U.S. at 146), and that a court must
therefore “examine the expert's conclusions in
order to determine whether they could reliably flow from the
facts known to the expert and the methodology used.”
Id. (quoting Heller v. Shaw Indus., Inc.,
167 F.3d 146, 153 (3d Cir. 1999)).
order to be reliable, an expert's opinion must not be
speculative or rest upon conjecture. Simply put”
“[a]n expert's opinion is reliable if it is
‘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.'”
Elcock v. Kmart Corp.,233 F.3d 734, 745 (3d Cir.
2000). Further, “under Pennsylvania law, an expert . .
. [typically] must testify to a ‘reasonable degree of
medical certainty,' a standard which cannot be met if the
expert testimony is based on speculation.”
Pritchard v. Dow Agro Scis., 705 F.Supp.2d ...