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R.D. v. Shohola, Inc.

United States District Court, M.D. Pennsylvania

November 15, 2019

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



         I. Factual Background

         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 some internal contradictions and inconsistencies.

         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, 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 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. 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. Elizabeth Loftus.

         For its 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.

         The 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.[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.[3]

         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 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.

         Having 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.

         II. Discussion

         A. 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 methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.

         Fed. R. 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).

         To be 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)).

         Provided 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 factors:

(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.

         The 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)).

         In 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 ...

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