Opinion
1:04-CV-6059-SMS.
March 8, 2007
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTIONS IN LIMINE REGARDING EXPERT TESTIMONY AND OPINION EVIDENCE
Plaintiff is proceeding with a civil action in this Court. The matter has been referred to the Magistrate Judge for all proceedings, including the entry of final judgment, pursuant to 28 U.S.C. § 636(c), Fed.R.Civ.P. 73(b), and Local Rule 73-301.
I. Defendant's Motion to Exclude Opinions and Other Testimony of Plaintiff's Expert M. Anne Juri, M.A., M.F.T. (Doc. 60)
Defendant filed a motion to exclude opinion and other testimony of Plaintiff's expert M. Anne Juri, M.A., M.F.T., on December 5, 2006, including a notice, memorandum, declaration, and exhibits. Plaintiff filed opposition on December 27, 2006, including a memorandum and the declarations of Rey Hassan and expert Anne Juri. The motion was argued on February 6, 2007, by Rey Hassan, counsel for Plaintiff, and Robert Rosati, counsel for Defendant, and the matter was submitted to the Court for decision.
The motion addresses numerous aspects of anticipated testimony, which are given twenty numbers in the motion (Mot. pp. 1-3), and it raises multiple grounds for exclusion.
A. Hearsay
Defendant objects on hearsay grounds to testimony and/or opinions from Juri regarding numerous subjects (1, 2, 3, 4, 5, 6, 8, 9, 10, 11, 13, 14, 15, 17).
With respect to examination of expert witnesses, Fed.R.Evid. 703 states:
The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect. (Emphasis added.)
Fed.R.Evid. 705 states:
The expert may testify in terms of opinion or inference and give reasons therefor without first testifying to the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination.
Rule 703 as amended in 2000 requires a court asked to admit otherwise inadmissible evidence to determine whether the facts are of a type reasonably relied on by experts in the particular field, and then whether or not the probative value of the underlying data substantially outweighs its prejudicial effect. The evidence is to be admitted only if the Court answers both questions in the affirmative. Turner v. Burlington Northern Santa Fe R. Co., 338 F.3d 1058, 1061 (9th Cir. 2003) (upholding the trial court's exclusion of inadmissible hearsay used as the basis of opinion where the probative value was minimal and the prejudice from admission substantial). The amendment provides a presumption against disclosure to the jury of information that is used as the basis of an expert's opinion and is not admissible for any substantive purpose, when that information is offered by the proponent of the expert. Id. at 1062.
Here, some of these matters that Defendant seeks to exclude as hearsay concern events or phenomena that Plaintiff apparently had related to Juri, such as family assessment and cultural values, Heid's treatment and/or alleged continued harassment of Garcia after the October 2002 yelling incident and after the May 30, 2003, masturbation incident, support for her statements by Garcia's coworkers, a decline in Plaintiff's work performance, instigation by Heid of a poisonous work environment followed by Defendant's doing nothing to correct it, and changes in Garcia's relationship with her husband. Juri apparently considered these matters in reaching her opinion. If these matters were offered for the truth of the matters asserted by Plaintiff in the statements, the evidence would be hearsay. The only apparent reason for admitting such statements would be to explain the basis of the expert's opinion.
The treatment that Plaintiff received by Heid and Defendant, and Plaintiff's experience of the effects of this on her marriage and other aspects of her life, will presumably be the subject of Garcia's own testimony, so any repetition by an expert in the form of a detailed narrative of the facts would be duplicative. These facts, along with a family history or other biographical information, are of a type reasonably relied on by experts. However, unnecessary repetition of the details of Plaintiff's perception of the events, coworkers' attitudes, and statements would bring very subjective phenomena before the jury and would carry a potential for prejudice in the form of an undue focus on emotional issues and distraction of the trier from the central issues in a case already tending towards evidentiary complexity because of the involvement of several different scenarios of harassment within the workplace.
On the other hand, Plaintiff, the source of the information, is subject to cross-examination by Defendant, so the possibility for true prejudice may be limited by cross-examination and by a limiting instruction.
However, on balance, the potential for prejudice, confusion, and undue consumption of time outweighs the probative value of the evidence. The Court cautions that Juri shall not summarize the Plaintiff's own statements made to Juri regarding what happened to Plaintiff. Recounting Plaintiff's statements regarding her coworkers' support also will not be allowed because its probative value is substantially outweighed by the potential prejudice.
The Court therefore GRANTS Defendant's motion to exclude from the expert's initial testimony Plaintiff's own statements regarding what happened to Plaintiff (as distinct from some more summary explanation by the expert regarding a course of events related by Plaintiff) and Plaintiff's statements regarding her coworkers' support.
Some of the matters Defendant seeks to exclude are opinions from the expert regarding the effect of various events, such as the October 2002 yelling incident, on Plaintiff, such as that Plaintiff was victimized again by the ineffectiveness of the school district in stopping Heid's behavior; that Plaintiff's relationship with her husband changed as a result of any conduct by Heid or Defendant; that Plaintiff had diarrhea and vomiting during April 2005 during her deposition due to work-related stress; and more generally that Heid's behavior caused Plaintiff psychiatric distress, post-traumatic stress disorder (PTSD), and deeply damaged Plaintiff.
The expert's opinions concerning Plaintiff's condition, including diagnosis, causation of psychological harm, and opinion regarding the nature and extent of the harm caused Plaintiff, is generally within the expert's expertise. It concerns subjects regarding which expert evidence would assist the trier of fact. Of course, there will be some overlap with phenomena that the trier may understand on a common-sense level, such as the fact that conflict at work may cause stress, or physical threats may cause fear, etc. However, the nature and extent of the damages suffered by Plaintiff as a result of the alleged harassment are material issues.
Counsel should take care to question the expert carefully to elicit opinions concerning these matters and not opinions concerning the conduct itself which the expert would opine was the cause of Plaintiff's damage; it is the condition of the Plaintiff and the effects of any conduct that should be the focus of the inquiry.
The expert has no personal knowledge of the events experienced by Plaintiff, and thus any opinion of the expert as to whether or not Plaintiff was harassed, Heid's alleged treatment of Plaintiff after the yelling incident, whether the school district victimized Plaintiff again, or the motivation of other actors in the workplace, separate and apart from the opinion of the effect of such conduct on Plaintiff, would be inadmissible.
To the extent that it is generally accepted that one person's yelling at another is unpleasant and usually upsetting, the jury most likely would not be assisted by Juri's opinion on this. However, Juri will be allowed to testify that she was told it occurred, Plaintiff was upset by it, and Juri considered the totality of the circumstances in diagnosing Plaintiff.
Other matters involve opinions regarding Plaintiff's subjective state of mind that resulted from the various events, such as Plaintiff's claimed fear of retaliation if she reported Heid, Plaintiff's feeling that she was repeatedly or continually victimized by the district, and Plaintiff's feeling that Heid sensed he was safe from the district to continue to abuse Plaintiff. This type of information is probative of Plaintiff's state of mind as a result of the alleged harassment and of any emotional distress that Plaintiff might have suffered; it relates to her damages. Again, it is expected that Plaintiff herself will testify to her own subjective experience of the treatment she received from the district; undue repetition of this material could be prejudicial, particularly if repeated with the imprint of an expert. However, the expert should be allowed to testify to her opinion of the perceived psychological damage to Plaintiff that resulted from the alleged misconduct, and to any fear and anxiety if they are part and parcel of that damage.
Further, the Court emphasizes that if otherwise inadmissible evidence is admitted to explain the expert's opinion, then a limiting instruction should be given to the jury to inform it that the hearsay evidence is to be considered solely as a basis for the expert opinion and not as substantive evidence. United States v. 0.56 Acres of Land, 109 F.3d 1493, 1496 (9th Cir. 1997) (citing Paddack v. Dave Christensen, Inc., 745 F.2d 1254, 1261-62 (9th Cir. 1984)). To the extent that any hearsay is admitted, a limiting instruction should be given.
The Court will evaluate the proffer of this evidence as it is presented in trial and entertain any objections and suggestions for limiting instructions at that time.
B. Opinion Evidence regarding Plaintiff's Credibility
Defendant seeks to exclude evidence relating to credibility, including various opinions concerning the effect of discrete instances of Heid's misconduct on Plaintiff, opinions regarding Plaintiff's credibility, whether or not she was telling the truth (subject matter not further specified) and/or the veracity of Garcia's claimed reactions, such as fear of retaliation or a sense that Heid felt free to harass her, the veracity of or the claimed effects on Garcia of Garcia's allegations that Heid mimicked masturbation on May 30, 2003, or adjusted himself or played with his private parts at other times, and opinions regarding Heid's later treatment of Plaintiff.
The Court has previously addressed the inadmissibility of opinions of the expert regarding the conduct of Defendants and the admissibility of opinions relating to the injury caused by the alleged harassment. Further, the Court has addressed the inadmissibility (absent further development of evidence, request by a party, or cross-examination) in general of Plaintiff's own statements as related to the expert.
With respect to opinions of the expert as to the Plaintiff's credibility, it is established that because it is the province of the jury to determine credibility, opinions that are nothing more than vouchers for or attacks on credibility (such as that sexual harassment occurred as alleged by the victim) do not assist the trier of fact. United States v. Barnard, 490 F.2d 907, 912-13 (9th Cir. 1973) (upholding, in the absence of unusual circumstances, the trial court's exclusion of the opinion of a psychiatrist and psychologist that a government witness was a sociopath who would lie when it was to his advantage to do so);United States v. Awkard, 597 F.2d 667, 671 (9th Cir. 1979) (error to permit an expert to testify to the ability of a witness to recall a stabbing, and noting that under the Federal Rules of Evidence, opinion testimony on credibility is generally limited to character, and all other opinions on credibility are for the jury to form); United States v. Charley, 189 F.3d 1251, 1267 (10th Cir. 1999) (in criminal proceeding concerning sexual abuse, it was held appropriate to admit an expert's statement that the alleged victim's symptoms were consistent with symptoms of sexually abused children, but error to have admitted statements to the effect that abuse had happened because doing so invaded the province of the jury); United States v. Witted, 11 F.3d 782, 785-(8th Cir. 1993) (in criminal proceeding for sexual abuse of a child, it was held permissible for expert to describe the characteristics exhibited by the alleged victim, summarize the medical evidence, and express an opinion that the evidence was consistent with the victim's allegations of abuse; however, a diagnosis of repeated child sexual abuse was in effect an opinion that sexual abuse was in fact occurring and, whether in the guise of a medical opinion or not, was not useful to the jury and was not admissible); United States v. Azure, 801 F.2d 336, 339-41 (8th Cir. 1986) (error to permit pediatrician to opine as to the truth of the story told by a victim of child sexual abuse [specifically, to testify that the child was believable and that he could see no reason why she would not be telling the truth] because it invaded the province of the jury and exceeded the scope of permissible expert testimony under Rule 792); Nichols v. American National Ins. Co., 154 F.3d 875, 882-83 (8th Cir. 1998) (it was held to be an intrusion into the jury's territory and error to permit a psychiatric expert to testify that the Plaintiff had poor psychiatric credibility or ability to assess the cause of her own state or report her symptoms accurately; further, she had "recall bias" (mistaken ideas regarding her past symptoms), malingered, and was motivated by secondary gain, and the Plaintiff's own psychiatric expert's examination of her had been subject to such weaknesses); but see, United States v. Gonzalez-Maldonado, 115 F.3d 9, 15 (1st Cir. 1997) (finding error in the exclusion of an expert's testimony regarding a potential witness's mental illness and its impact on his behavior, including a propensity to exaggerate, where the witness was incompetent and thus did not testify in front of the jury, but the witness's taped statements were introduced, and thus there was a special need for probative evidence regarding the condition in order for the lay jury to be able to determine intelligently the weight to place on the recorded statements); Skidmore v. Precision Printing and Pkg., Inc., 188 F.3d 606, 618 (5th Cir. 1999) (in a sexual harassment case, upholding a trial court's admission of the testimony of a psychiatrist that the Plaintiff seemed genuinely distressed to him, and he did not think that the Plaintiff had lied to him or fabricated her psychiatric symptoms, because it did not constitute testimony that Plaintiff was undoubtedly telling the truth, but rather was in essence testimony that her symptoms and recollections appeared genuine and that he felt that he had not been duped by her).
Here, as previously noted, the opinions regarding the effect of the claimed harassment on Plaintiff would be admissible, but opinions regarding whether or not the claimed harassment occurred would be beyond the scope of permissible expert opinion. Opinions regarding Plaintiff's credibility in general would likewise be inadmissible, although there might be, pursuant to Skidmore, some room for the expert to testify to her reliance on Plaintiff's statements to her and her impression that she had not been duped as a basis for her opinion (as distinct from testifying to Plaintiff's overall credibility, or her credibility on the stand). It does not appear that there is any component of Plaintiff's diagnosed condition, PTSD, that relates to truthfulness; there does not appear to be any set of special circumstances here that would warrant departing from the general rule that opinions regarding Plaintiff's credibility, and her credibility with respect to the material allegations, are inadmissible.
Accordingly, Defendant's motion in limine to exclude testimony and opinions regarding Plaintiff's credibility IS GRANTED.
C. Opinions on Cultural Practices
Defendant would exclude Juri's testimony and opinions regarding Mexican burial and funeral practices because Juri is unqualified.
Juri testified that she had received a lot of training in cultural diversity, had lived in Puerto Rico for four years, and currently treated Hispanic clients in Spanish, including a lot of people from Mexico, Puerto Rico, and Chile; she was a Catholic. (Rosati Decl., Ex. 3, Dep. p. 146.) She stated in her declaration that she speaks Spanish, is bilingual, understands the spiritual and cultural values of Roman Catholic Hispanic people, such as Plaintiff, and she visited Mexico numerous times, although the nature and extent of the contact with Mexico or burial or funeral customs is not specified. She states that she is familiar with Mexican burial customs, where the burial and memorial services may be separated by an interval of time, but the basis for the familiarity is uncertain.
The relevance of this testimony is uncertain, but it appears that it is part of an effort to set forth a cultural context in which to establish the nature or extent of Plaintiff's damages resulting from an apparent assertion that Plaintiff fabricated in some respect in connection with funeral or family leave that Plaintiff took in order to visit Mexico, or that Plaintiff abused the leave system. It may also be for the purpose of buttressing Plaintiff's credibility regarding the leave, her conduct regarding it, and an apparent controversy that arose thereafter concerning her use of the leave.
In some sense, a cultural background or context for Plaintiff's experiences with respect to the funeral leave would be based on specialized knowledge of cultural facts within the meaning of Rule 702. However, it does not appear that Plaintiff is qualified as an expert by knowledge, skill, experience, training, or education, or that the testimony is based on sufficient facts or data and is the product of reliable principles and methods. Although experience may be a sufficient basis for qualifying an expert, it does not appear that Juri had any special familiarity or experience with Mexican funeral practices. There is no basis for a conclusion that Plaintiff has sufficient qualifications to opine what the precise cultural context is with respect to the Mexican funeral or burial practices in question. Training in cultural diversity does not appear to constitute training regarding Mexican funeral practices. Likewise, knowledge of Spanish and even some anecdotal experience with Mexican citizens would not appear to qualify the psychologist as a cultural expert. There is evidence that Plaintiff brought Juri papers, including the death certificate, the date of the burial, photographs of various churches Plaintiff visited, a description of the importance to Mexican people of the importance of an island also visited, and information, apparently from the internet, brought by Plaintiff to Juri to explain how Mexican people celebrate the Day of the Dead or a funeral ritual. (Id. pp. 25-30.) However, there is no evidence of Juri's qualifications to render an opinion on Mexican funeral practices or the special cultural significance of bereavement activities in Mexico. Cf. United States v. Castaneda, 94 F.3d 592, 595-96 (9th Cir. 1996) (recognizing the court's discretion and upholding exclusion of a cultural expert, a person familiar with problems faced by migrant farmworkers, to testify to an explanation of the Defendant's flight from police, where the person was allowed to testify that the Defendant was afraid of governmental deportation, and where the subject was not necessarily one that needed illumination from an expert); Jinro America Inc. v. Seure Investments, Inc., 266 F.3d 993 (9th Cir. 2001, amended 272 F.3d 1289 (9th Cir. 2001) (finding an abuse of discretion to admit the defense's expert witness to testify about Korean law and business practices, including a propensity to engage in fraud, based on experience as a detective in Korea for many years, because the limited experience was inadequate qualification and permitted no more than impressionistic generalizations about Korean businesses based on personal experiences, a hobby, newspaper articles, and marriage to a Korean woman).
Here, Plaintiff can testify to her family's cultural traditions, her own conduct, and its significance with respect to her experience in connection with the leave controversy at her place of work and the alleged misconduct of Heid and the Defendant. The jury can evaluate that testimony; it does not appear that the subject is one that necessarily needs illumination from an expert. Juri may testify regarding Plaintiff's damages or injury, which necessarily involved to some extent a cultural context as related by Plaintiff. However, it does not appear that Juri has adequate qualifications on her own to establish expertise with respect to Mexican burial practices themselves.
Defendant's motion to exclude Juri's expert opinion regarding Mexican burial practices IS GRANTED.
D. Scope of Opinion
1. Opinions regarding Defendant's Conduct
Defendant seeks to exclude Juri's opinion regarding the effectiveness of Defendant's anti-discrimination procedures, including that Plaintiff was victimized again by the ineffectiveness of the school district in stopping Heid's behavior, and regarding Heid's having instigated a poisonous work environment with Defendant's doing nothing to correct it.
As previously noted, Juri lacks personal knowledge of the conduct of Defendant and its agent. As to expertise, Juri is a licensed family therapist, and has been since 1982, all in good standing; she has testified in court and jury trials and has been declared an expert in the areas of stress, chemical dependency, family law, and post-traumatic disorder.
The only qualifications mentioned with respect to poisonous work environment are that Juri has been retained by four different school district and seven different schools by insurance carriers to mediate school interpersonal conflicts between personnel and provide training to school staff and management. Further, she states that she knows about group dynamics and is well aware that one person may cause discord among the whole group; further, she states that if one attempt at resolution is unsuccessful, there are a multitude of other approaches which could be used, but Defendant did not try any of them.
Plaintiff's qualifications are clearly geared towards family therapy; her expertise is psychological. Her experience was in mediating personnel disputes, not in dealing with sexual harassment, fashioning or evaluating policies or procedures with respect to the work environment, or judging the adequacy of employers' responses to complaints of sexual harassment. It does not appear that the trier would be assisted by the testimony because it is up to the trier to determine the adequacy and reasonableness of Defendant's actions and responses to the complaints.
Although qualification may to some extent be a matter of degree, this case is analogous to United States v. Chang, 207 F.3d 1169 (9th Cir. 2000) (within the trial court's discretion to exclude expert testimony on authenticity of a foreign certificate where the expert's expertise covered the history of issuance of the certificates, not authenticity), and Jones v. Lincoln Electric Co., 188 F.3d 709 (7th Cir. 1999) (qualifications in material science and metallurgy insufficient to warrant opinion testimony as to medical or biological issues concerning the ability of lungs to absorb manganese from manganese fumes).
Defendant's motion to exclude Juri's opinion testimony regarding the effectiveness of Defendant's anti-discrimination procedures and the instigation and perpetuation of a poisonous work environment IS GRANTED.
2. Mexican Funeral and Burial Practices
As previously noted, Plaintiff lacks qualifications with respect to these issues; further, it would not appear that any opinion in this area would be of assistance to the trier of fact.
Defendant's motion to exclude such evidence IS GRANTED.
3. Opinion that Plaintiff's Diarrhea and Vomiting during April 2005 and Her Deposition Was Due to Work-Related Stress
Defendant seeks to exclude this evidence because of lack of qualification to utter an opinion. Defendant relies on the testimony of Dr. Laurie Hedden, Garcia's primary care physician, that her vomiting in April 2005 was caused by an illness and medication prescribed by Hedden, but that stress could have contributed to it.
It appears that Juri's qualifications and methodology would permit her to opine regarding the cause of a symptom such as nausea, which common knowledge holds is sometimes associated with stress. Although vomiting may be a biological or physiological phenomenon, even the medical expert acknowledged that stress could have contributed to the symptom. The soundness of the opinion and the facts upon which it was based may be explored by cross-examination. It has been recognized that a psychologist may testify that physical symptoms, such as sexual problems, fatigue, and difficulty breathing, are caused by a psychological phenomenon where they are related to the psychological diagnosis.Ferris v. Pennsylvania Federation Brotherhood of Maintenance of Way Employees, 153 F.Supp.2d 736, 742 (E.D.Pa 2001). Here, the physical symptom of vomiting or nausea may constitute physiologic reactivity upon exposure to events that symbolize or resemble an aspect of the traumatic event, phenomena included in the diagnostic criteria for PTSD.
Accordingly, the Court DENIES Defendant's motion to exclude the testimony of Juri regarding Plaintiff's PTSD and the causation of distress, other symptoms, and injury as a result of Plaintiff's experience with Heid and Defendant.
E. Reliability of Expert's Method
Fed.R.Evid. 702 provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (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.
By way of overview, in accordance with Fed.R.Evid. 104(a) (providing that generally, preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court) and 702 (expert opinion evidence), it is suggested that the possible preliminary fact determinations that a district court must make upon objection may include 1) whether the testimony is based on scientific, technical, or other specialized knowledge; 2) whether the expert's testimony will assist the trier of fact; 3) whether the witness is a qualified expert; 4) whether the information underlying the opinion was of a type reasonably relied upon by experts in the particular field in forming an opinion; and 5) whether the testimony is both reliable and relevant. Jones and Rosen, Federal Civil Trials and Evidence § 8: 1627 (Rutter 2006); Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 590-95 (1993).
In determining to admit scientific evidence, the trial court must determine if the evidence is relevant and reliable. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993) (upholding the trial court's admission of a well-credentialed expert's opinion, based on a review of extensive published scientific literature, that maternal use of a specific pharmaceutical was not a risk factor for human birth defects, and exclusion of other well-credentialed experts who based their opinions regarding causation of birth defects on test-tube and live animal studies, chemical structure analyses, and unpublished and therefore not peer-reviewed re-analysis of previously published human statistical studies). In order for a scientific expert's opinion, inference, or assertion to be reliable, it must be derived by the scientific method, with science being recognized as a process for proposing and refining explanations about the world that are subject to further testing and refinement; further, it should be supported by good grounds (appropriate validation) based on what is known. Id. p. 590. Evidentiary reliability or trustworthiness of scientific evidence is based on scientific validity in the context of the purpose for which the evidence is offered; there must be a valid scientific connection to the pertinent inquiry as a precondition to admissibility. Id. In place of a personal knowledge requirement for the basis of an opinion is the assumption that the expert's opinion will have a reliable basis in the knowledge and experience of his discipline. Id. p. 592.
The relevance portion of Rule 702 consists of the requirement that the evidence or testimony must assist the trier to understand the evidence or to determine a fact in issue, and must be sufficiently tied to the facts of the case that it will aid the jury in resolving a factual dispute. Id. p. 591.
The trial court's determination of preliminary facts concerning the admissibility of expert evidence that is based on scientific, technical, or other specialized knowledge should be stated on the record; the proponent of challenged evidence bears the burden of establishing its admissibility by a preponderance of the evidence. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592 n. 10 (1993); Kumho Tire Co., Ltd. v.Carmichael, 526 U.S. 137, 149-51 (1999); Elsayed Mukhtar v. California State University Hayward, 299 F.3d 1053 (9th Cir. 2002).
Here, Defendant seeks to exclude Juri's opinions and testimony regarding Garcia's suffering from post-traumatic stress disorder, psychiatric distress, decline in work performance, deep damage, and a change in her relationship with her husband as a result of Heid's conduct.
Defendant argues that Juri's method was unreliable because Juri did not know about or use established standards in her field for differential diagnosis. There is evidence that Juri did not sit down and use a specific or current diagnostic tree; she did not use the American Psychological Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision, in diagnosing Plaintiff; she had the DSM-IV, copyrighted in 1994, but only the diagnostic criteria, and not the commentary. She testified that no one in her professional organizations had promulgated the newer version, and consistent use of the older codes had produced no problems with codes for insurance billing; further, the industry standard was moving to ICD codes, but that had not yet been mandated. (Dep. pp. 52-53.) She went through the diagnostic criteria for PTSD with Plaintiff in order to present normalizing experience, and she noted which diagnostic criteria Plaintiff had. (Dep. p. 55-56.) Although Juri did not formally go through the decision tree for differential diagnosis, she had studied how to diagnose during her training for her license; and because she had done it so often, it was automatic as activating the clutch in a car, and she determined that Plaintiff had PTSD, depression, and marital and occupational problems. (Dep. pp. 55-57.)
In her declaration, Juri stated that she made a differential diagnosis of Plaintiff, narrowing the diagnosis from chronic depression, generalized, anxiety disorder, social anxiety disorder, agoraphobia, obsessive compulsive disorder, panic/anxiety disorders and/or malingering to post trauma stress disorder as the only diagnosis that embraced all of Plaintiff's symptoms, using the diagnostic criteria in the DSM IV Statistical Manual. (Decl. pp. 2-3.) She noted that Plaintiff was not obsessive compulsive or a malingerer. (Id. p. 3.) Further, the criteria sets used for the diagnosis did not differ in the DSM-IV-TR and DSM-IV. (Id.)
There is no expert evidence contradicting Juri's assertions, and Defendant admits that no changes were made in the later manual in the criteria sets for diagnosis; however, Defendant notes that additional or updated information regarding associated features is provided.
Juri held approximately a dozen clinical consultations with Plaintiff, performed mental status examinations, and reviewed journals and self-scoring scales filled out by Plaintiff. Juri also considered Plaintiff's performance evaluations and her deposition, and she met with two of Plaintiff's coworkers. (Dep. p. 33; Report of June 2, 2005.)
The Court concludes that Juri adhered essentially to a process of differential diagnosis. She distinguished her diagnosis from acute stress disorder; her path of differential diagnosis included the major differentiations set forth in the DSM-IV-TR (Rosati Decl., Ex. 6 p. 467), including consideration of mood disorders, chronic depression, other anxiety disorders, obsessive-compulsive disorder, and malingering.
She did not evaluate whether any of her anxiety disorder was attributable to the physiological effects of medication because Juri was not a physician and thus was not competent to do so; however, she determined that Plaintiff's anxiety began before she was medicated. (Dep. p. 61-62.) She determined that Plaintiff did not have anxiety disorder due to general medical conditions because her anxiety arose when the problems with Heid arose; her attempt to review medical records was thwarted by the physician's failure to send all the requested records. (Dep. pp. 63-64.) Juri determined that Plaintiff was borderline with agoraphobia that was not full-blown, and she did not have a social phobia or social anxiety disorder; she only had anxiety disorder around Heid. (Dep. 76.) She determined (made an educated guess) that Plaintiff used alcohol to cope with stress and anxiety and that the alcohol did not cause the problem. (Dep. p. 66.) Juri went through generalized anxiety disorder, but it was not as complete as PTSD, so she settled on PTSD. (Dep. p. 78.)
The Court concludes that Juri's opinion was reached pursuant to a reliable scientific method, namely, differential diagnosis, whereby it is determined which of two conditions or diseases with similar symptoms is the one suffered by the patient by systematic comparison and contrasting of clinical findings; it is a standard scientific technique of identifying the cause of a medical problem by eliminating likely causes until the most probable one is isolated. Such a method, if properly conducted, is recognized to be admissible under Daubert. Clausen v. M/V New Carissa, 339 F.3d 1049, 1057 (9th Cir. 2003). Competing causes generally capable of causing the symptom or condition should be considered, and hypotheses should each be eliminated by a process of providing reasons, using scientific methods and procedures as distinct from subjective beliefs or unsupported speculation, until a conclusion is reached as to the most likely cause of the findings. Id. p. 1058.
Here, Juri used a differential diagnosis. The fact that she might have not ruled out a general medical condition or medication should not preclude a finding that the otherwise reliable methodology was indeed reliable; Juri was not a physician. However, she did consider medication and use of alcohol and made conclusions thereon based on data and logic in light of her experience and training. She stated in her declaration that she did consider malingering. (Decl. p. 2.)
It has been recognized that not every possible cause must be ruled out in order for the differential process to be considered reliable enough to be admitted. See, Heller v. Shaw Indus., Inc., 167 F.3d 146, 156 (3d Cir. 1999); see, Weinstein's Federal Evidence § 702.06[2][c] n. 48 (2d ed. 2006) (citing numerous authorities). Strict or perfect adherence to method is not required. S.M. v. J.K., 262 F.3d 914, 921 (9th Cir. 2001) (opinion of psychiatrist that Plaintiff suffered from PTSD held admissible even though the expert testified that he did not rely solely on the DSM criteria but also on his own understanding of the disorder, which permitted triggering by an event less severe than one outside the range of usual human experience, because later revisions of the DSM supported the expert's criterion and thus reflected general acceptance).
To the extent that Defendant seeks to show that the decision was unsound, Defendant may cross-examine Juri regarding her methodology and assumptions, and it is ultimately for the trier of fact to evaluate the opinion.
There do not appear to be additional bases for challenging the reliability of the evidence. The Court notes that the opinions of Juri appear to be based on scientific, technical, or other specialized knowledge. The testimony will directly assist the trier of fact to understand the nature and extent of any damages suffered by Plaintiff. The information underlying the opinion appears to be of a type reasonably relied upon by experts in the particular field in forming an opinion.
Defendant's motion to exclude this evidence IS DENIED.
F. Undisclosed Opinions
Defendant also seeks to exclude any opinions not set forth in the Rule 26 disclosure. The Court has not been made aware of any such opinions; however, it notes that the general rule is that matters not disclosed are not admissible without establishing substantial justification or harmlessness. Fed.R.Evid. 37(c). At this point there is no specific undisclosed evidence before the Court or any showing of substantial justification or harmlessness; thus, no undisclosed opinion evidence should be admitted.
Defendant's motion to exclude such evidence IS GRANTED.
II. Exclusion of Testimony and Opinions of Stephen Morewitz, Ph.D. (Doc. 61)
Defendant filed a motion to exclude opinion and other testimony of Plaintiff's expert Stephen Morewitz, Ph.D., on December 5, 2006, including a notice, memorandum, declaration, and exhibits. Plaintiff filed opposition on December 27, 2006, including a memorandum and the declarations of Rey Hassan and expert Stephen Morewitz, Ph.D., and a resume of Dr. Morewitz. The motion was argued on February 6, 2007, by Rey Hassan, counsel for Plaintiff, and Robert Rosati, counsel for Defendant, and the matter was submitted to the Court for decision.
This motion again seeks to exclude fifteen separate opinions; however, they break down into various categories which will be addressed in the following analysis.
The facts may be briefly summarized. Morewitz had worked in assessing the impact of injuries, and specifically sexual harassment, on the victim and the victim's social, family, and occupational functioning; he had done research on sexual harassment and psycho-social problems. (Rosati Decl., Ex. 3 pp. 132-33.) He had taught sociological research methods including survey, field research, experimentation, and collection and analysis of data from different sources, using a widely recognized text in his teaching; although sociology and psychology overlap, there are basic methodological criteria, including two different approaches to field research. (Rosati Decl., Ex. 3 p. 11-13.) In studying organizations, sociologists use a variety of methods and theories, including field research, survey research, and experimental research. There are a variety of methods of performing field research, including unobtrusive methods, such as analysis of existing records, organizational records, and records of human behavior; further, there is collection of data in the field and design or use of a questionnaire. (Id. p. 14.) Field research involves going into an organization or organizations, looking at the policies and observing how they are being implemented, interviewing human resource managers and personnel as well as employees to find out what issues are coming up, what the organizational problems are, assessing the experience of people being trained, checking for problems with training of employees and staff regarding sexual harassment and the procedures, comparing the attitudes and knowledge of managers with those of employees, and assessing it through the process of triangulation; selecting interview data, reviewing documents, comparing and contrasting, determining whether the documents are being used; assessing the effectiveness by looking at outcomes, such as claims or lawsuits filed compared to others in the field. He had participated in one of the first studies of sexual harassment in the late 1970's, which led to his writing of a book on sexual harassment. (Id. 14-19.) Triangulation was taking different sources of data and relating the sources to each other to discern the presence of epistemological gaps, inconsistencies, or errors in knowledge or perceptions; if needed, additional data would then be collected. (Id. p. 22.)
Morewitz testified that he made a psychosocial evaluation of Plaintiff to evaluate the social, occupational, and family impact considering the issues of trauma; it was not purely an approach of clinical psychology. Such evaluations could be performed in different ways, but he used the Social Readjustment Rating Questionnaire developed by Holmes and Rahe, a social adjustment scale that was developed to assess the impact of life events on social functioning, family functioning, occupational functioning, and educational functioning, and that has been used extensively and found to have high reliability and validity. He used it in conjunction with interviewing and observation and review of depositions; he then analyzed it and prepared a report. Plaintiff filled out the scale, and then Morewitz conducted an observation interview of Plaintiff about it for several hours. He then reviewed the depositions, reviewed his book, and prepared the report. (Id. pp. 43-44, 89.) The Holmes and Rahe instrument permitted bringing up issues such as a hostile work environment and/or anxiety and fear about retaliation on the job causing errors in job performance. (Id. p. 147.) In forming his opinions, he used methods that are approved, including triangulation from different data sources, looking for inconsistencies and patterns, doing further research, and then looking for further corroboration for consistencies, to determine whether there is a consistent pattern over time. He used the protocol, or screening devices to assess psycho-social impact of problems, and he had special knowledge and training in the use of protocols and had in fact developed them. (Id. p. 144-45.) The techniques he utilized in evaluating the claim had been subject to peer review; the Holmes and Rahe scale and the use of triangulation were classic techniques that were in the textbooks, and the instrument had quantitative scores. (Id. p. 147.)
Plaintiff had experienced fifteen out of forty-three events in the rating scale, indicating that her problems with Heid had significantly impaired her occupational, family, and social functioning. (Tr. 149.)
Further, in his declaration submitted in opposition to this motion, Morewitz stated that the Homes and Rahe Social Readjustment Rating Scale (SRRQ) is commonly used and well known as a standard instrument to assess the type of functioning to which he seeks to testify; its findings have been replicated and validated, with validation in more than thirty-four recent peer-reviewed scientific publications. Triangulation is a method he has used to collect and analyze data as a valuable research strategy; he notes its use in evaluation of social, family and occupational functioning.
A. Compliance with Defendant's Policies
Defendant seeks to exclude expert opinion as to whether or not Defendant effectively followed its own sexual harassment policies and procedures in responding to Plaintiff's complaints of sexual harassment and workplace abuse against Heid.
Pursuant to Rule 702, specialized knowledge must assist the trier of fact to understand the evidence or to determine a fact in issue. The test is to undertake a common sense inquiry whether the untrained layperson would be qualified to determine intelligently and to the best possible degree the particular issue without enlightenment from those having a specialized understanding of the subject involved in the dispute. Fed.R.Evid. 702, Advisory Committee Note (1972). It is within the trial court's discretion to exclude expert testimony where the jury is capable of evaluating the testimony presented at trial and could determine for itself the matter in question. Curtis v. Oklahoma City Public Schools Bod. of Educ., 147 F.3d 1200, 1219 (10th Cir. 1998) (upholding the trial court's exercise of discretion where expert testimony was allowed regarding what effective recruiting was and the potential negative effects of recruiting during the summer, but disallowed with respect to whether the recruitment plan in the case was effective and constituted harassment or retaliation because the issues were not beyond the ken of people of ordinary intelligence); Pelster v. Ray, 987 F.2d 514, 526 (8th Cir. 1993) (suggesting that even if a witness had qualified as an expert, testimony regarding whether a vehicle's odometer had been rolled back based on odometer readings on two titles, odometer statements, and check-in sheets was within the ability of any lay person to compare and determine).
Here, determining whether Defendant's own policy was followed or not is within the ability of a lay person intelligently to determine without the aid of specialized knowledge.
B. Failure to Investigate, Monitor, and Train, and Sub-standard Response
Defendant seeks to exclude evidence regarding whether Defendant and Elliott failed to investigate Garcia's complaint of sexual harassment and abuse, monitor the progress towards a resolution, and ensure Heid did not retaliate; whether Defendant's employees were properly trained in what constitutes abusive behaviors, including sexual harassment; and whether Defendant's conduct fell below the standards of an organization in responding effectively to Garcia's complaints.
Initially, the Court notes that it would be helpful to the trier of fact to have information from someone with specialized knowledge of the elements of effective sexual harassment policies and implementation thereof in the workplace. Although generally a lay person is qualified to determine what is reasonable in various circumstances, Morewitz's experience includes twenty-three years as a social scientist at academic and other institutions, where he taught, trained regarding, and researched sexual harassment policies and procedures. He taught and conducted research on sexual harassment policies and procedures to students who included human resource managers and administrators. He is certified by the National Association of Forensic Counselors. He appears to have specialized knowledge of the sociological aspects of these subjects as well as an understanding of sociological methods. If he has sufficient specialized knowledge regarding the elements of effective sexual harassment policies and effective implementation of such policies within the relevant context (i.e., with respect to institutions such as Defendant during the relevant time period, etc.), he could testify to norms or standards concerning such policies and implementation thereof, and the manner in which and extent to which Defendant's conduct deviated from normative standards. His expertise would be helpful to the trier in evaluating the appropriateness and effectiveness of the Defendant's response to Plaintiff's complaints. Compare, Davis v. Mason County, 927 F.2d 1473, (noting the appropriateness of admitting expert testimony that compares the conduct of parties to an industry standard), overruled on another point in Davis v. City and County of San Francisco, 976 F.2d 1536, vacated in part and hearing denied inDavis v. City and County of San Francisco, 984 F.2d 345 (1993).
Here, it is unclear whether Plaintiff is proposing to offer Morewitz to give such testimony, or is instead attempting to establish that Morewitz conducted a scientific study of the specific sexual harassment policies and implementation thereof by Defendant using specific sociological methods, and that his opinion should be admitted based on such a process. In view of the centrality of the issue that the trier must decide, namely, the reasonableness of Defendant's response to Plaintiff's complaint, the Court has determined not to rule on this aspect of this motion at this juncture. Instead, further clarification of Plaintiff's offer, including the basis for the opinion and method used, is required. The Court has only very general information regarding Morewitz's experience; it is difficult at this point to determine his actual familiarity and experience with the elements and implementation of sexual harassment policies in institutions such as Defendant and other pertinent aspects of qualification to render an opinion on a standard within educational employment such as Plaintiff's. Further, if Morewitz's testimony on this matter is not sought to be introduced to show an industry standard and deviation therefrom, then it is not clear what method or expertise is being relied upon.
The Court expects to be further informed regarding this and further proposes to arrange with counsel to hold a hearing outside the presence of the jury before Morewitz begins his testimony at which these preliminary matters relating to his testimony concerning the adequacy of the investigation and response may be presented, considered, and ruled upon by the Court.
Ruling on this portion of Defendant's motion IS RESERVED for further proceedings.
C. Evidence of the Effect of Defendant's Policies, Procedures, and Conduct
Defendant seeks to exclude evidence of the effect of Defendant's policies, procedures, and conduct, including the possible impact of Heid's behaviors on Plaintiff's family, social, and occupational functioning, including but not limited to Dr. Morewitz's psycho-social evaluation regarding the social impact, occupational impact, and family impact of the alleged events on Garcia, and any opinions derived from his use of the Holmes and Rahe's "Social Readjustment Rating Questionnaire"; and whether Plaintiff suffered stress, anxiety, depression, and stress-related health problems, including aggravation of her skin condition, Vitiligo, severe stress which resulted in multiple health problems and major disruption of her occupation, social, and family functioning, and was prescribed anti-depressant medication as a result of her problems in dealing with Heid because of her problems in dealing with Heid.
With respect to the determination of reliability, there is no exhaustive list of factors to be considered, but factors noted by the authorities include whether the scientific theory or technique can be and has been tested, whether it has been subjected to peer review and publication, whether there is a known or potential error rate, and whether it is generally accepted in the relevant scientific community; the inquiry is whether the analysis undergirding the experts' testimony falls within the range of accepted standards governing how scientists conduct their research and reach their conclusions, and thus the party presenting the expert must show that the expert's findings are based on sound science by presenting some objective, independent validation of the expert's methodology. Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1316-17 (9th Cir. 1995).
Here, Morwitz testified that he used a reliable, established, accepted method and protocol; the techniques he utilized in evaluating the claim had been subject to peer review. He had special knowledge and skill in using the protocol. There is no expert evidence contradicting this evidence or otherwise creating doubt as to the reliability of the Holmes and Rahe scale. Questions regarding the precise use of triangulation in his assessment may be covered on cross-examination, but even if the Court were to accept the fact that some experts may misuse triangulation, it has not been established that there was any misuse in the present case. It appears that the method used to assess the social, family, and occupational effects on Plaintiff was reliable.
Morewitz reviewed deposition testimony, pleadings, and other discovery in addition to administering the instrument and interviewing Plaintiff. Although he did not review all of the material before rendering his initial report, the later additional review did not change his opinion. Questions regarding the precise factual basis or responses of Plaintiff on the instrument may likewise be covered on cross-examination.
Accordingly, Defendant's motion in limine IS DENIED with respect to opinions based on the use of the Holmes and Rahe instrument and as to the nature and extent of the effects on the sociological, occupational, and family functioning of Plaintiff.
To the extent that Defendant objects that a sociologist is not qualified to opine as to the truth of falsity of Plaintiff's harassment allegations, and as to causation of medical or physical conditions (i.e., that anxiety, depression, aggravation of Vitiligo, and stress-related health problems were suffered by Plaintiff as a result of sexual harassment or Heid's conduct, and that anti-depressant medication was prescribed as a result of Heid's conduct), the Court agrees that opinions as to the truth of falsity of Plaintiff's allegations of sexual harassment, and further opinions as to purely physical phenomena and the causation thereof, are not helpful to the trier and are beyond the expertise of this expert, respectively.
Further, to the extent that Defendant objects that Morewitz should not be able to repeat Plaintiff's assertions of fact as his opinions, again, the Court notes that it is anticipated that Plaintiff will be testifying before Morewitz testifies, and it would be duplicative to have the expert recite in detail all the factual assertions of Plaintiff. As previously noted, it is not the province of the expert to testify to the truthfulness of the allegations.
However, the Court understands from Morewitz's testimony (Dep. pp. 131-32) that Morewitz has assumed the truth of Plaintiff's representations because he stated that it was "implicit," and that it was the role of the trier of fact, and not his role, to determine the facts; he has merely assumed that Plaintiff is credible in forming his opinions. Again, as previously analyzed, it is not the province of the expert to testify generally as to the Plaintiff's credibility or as to the ultimate issue of whether or not the events claimed by Plaintiff to have occurred did or did not actually occur.
Accordingly, consistently with the foregoing analysis, Defendant's motion to exclude opinions as to these matters IS GRANTED.
C. Undisclosed Opinions
As previously noted, the Court understands that only opinions previously disclosed in conformity with Fed. Rule Civ. Proc. 26 are admissible. Thus, to the extent that this motion seeks to exclude any opinions not disclosed, the motion IS GRANTED.
IT IS SO ORDERED.