Johnson v. Walden University Inc

Filing 47

MEMORANDUM OF DECISION AND ORDER granting 24 Motion to Preclude. Signed by Judge Dominic J. Squatrito on 6/8/12. (Glynn, T.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
GREG V. JOHNSON
Plaintiff,
v.
WALDEN UNIVERSITY, INC.
Defendant.

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CIVIL ACTION NO. 3:08CV00045 (DJS)

MEMORANDUM OF DECISION AND ORDER
The Plaintiff, Greg V. Johnson (“Johnson”), brings this diversity action against the
Defendant, Walden University, Inc. (“Walden”), raising claims of fraudulent misrepresentation,
negligent misrepresentation, violation of the Connecticut Unfair Trade Practices Act
(“CUTPA”), breach of implied contract, promissory estoppel, and breach of implied covenant of
good faith and fair dealing. Now pending before the court is Walden’s motion to exclude the
expert testimony of Brett Steinberg, Ph.D. For the reasons set forth below, the motion to exclude
expert testimony (doc. # 24) is GRANTED.
BACKGROUND
Johnson's claims all relate to his allegations that representations made by and on behalf of
Walden led Johnson to believe that he could become a practicing psychologist, i.e., a licensed
psychologist engaged in the practice of psychology, by obtaining from Walden a doctorate degree
in psychology with a specialization in health psychology (or sports psychology). After Johnson
had received his doctorate in psychology from Walden, he was informed by an agent of the State
of Connecticut that he would not be permitted to sit for Connecticut's psychology licensing
examination because Walden lacked the necessary accreditation. Without a license to practice

psychology issued by the State of Connecticut, Johnson cannot practice psychology in
Connecticut.
Johnson has disclosed Brett Steinberg, Ph.D. as an expert witness. In his written report,
Dr. Steinberg expresses his opinions on the following "Walden program" issues: (1) whether
Walden made false or misleading statements concerning its psychology program; (2) whether
such statements could have been a contributing factor in Johnson's completing the Walden
psychology program; and (3) whether Walden's psychology program met the academic standards
of a legitimate Ph.D. program in psychology. Walden moves to exclude the testimony of Dr.
Steinberg for the reasons that his opinions on these issues are irrelevant, no expert opinion is
necessary on these issues, and testimony on these points would only waste time and confuse the
issues.
Dr. Steinberg's report also offers his opinions on Johnson's lost income based upon his
inability to practice as a psychologist in general and, more specifically, as a psychologist in
private practice. Walden moves to exclude these opinions for the reasons that Dr. Steinberg is not
qualified to provide an expert opinion on Johnson's earning potential as a practicing psychologist
and that there is no proper factual basis for the opinion on lost income as a psychologist in
private practice.
STANDARD
Federal Rule of Evidence 702 provides that:
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
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to determine a fact in issue;
(b) the 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.

"District courts have a 'gatekeeping' role under Federal Rule of Evidence 702 and are
charged with the task of ensuring that an expert's testimony both rests on a reliable foundation
and is relevant to the task at hand." Lynch v. Trek Bicycle Corp., 374 F. App'x 204, 206 (2d Cir.
2010) (internal quotation marks omitted). "[I]n assessing admissibility, the trial court must
determine whether the proffered expert testimony is relevant, i.e., whether it 'has any tendency to
make the existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence,' Fed. R. Evid. 401 . . . ."
Campbell v. Metropolitan Property and Casualty Insurance Co., 239 F.3d 179, 184 (2d Cir.
2001). In order to satisfy the requirements of Rule 702, "the proffered testimony must 'fit' the
factual dispute at issue - - in other words, it must be 'sufficiently tied to the facts of the case that
it will aid the jury in resolving a factual dispute.'" In re Rezulin Products Liability Litigation, 441
F. Supp.2d 567, 576 (S.D.N.Y. 2006) (quoting Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579, 591 (1993)) .
Walden Program Issues
A qualified witness may testify as an expert only if his "specialized knowledge will help
the trier of fact to understand the evidence or to determine a fact in issue." Fed. R. Evid. 702.
Walden argues that expert testimony is not needed as to the Walden program issues. Johnson, on
the other hand, contends that Dr. Steinberg's testimony on the Walden program issues would
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"provid[e] a complete picture of the program in which the Plaintiff was enrolled . . . [and] tend[]
to prove the Defendant acted with bad intent in publishing the representations at issue (that
completing the program would prepare the Plaintiff to practice psychology), because the
testimony makes it more probable that such representations were known by the Defendant to be
untrue." (Doc. # 30, p. 6.)
In considering the need for expert testimony on the Walden program issues, it is
important to consider the essence of the parties' arguments as to the Walden program. Johnson
alleges that Walden, through explicit statements made to him by his Walden faculty advisor, as
well as representations contained in materials describing the Walden program, led him to believe
he could become a practicing, i.e., a licensed, psychologist upon completion of the Walden
psychology program with a specialization in health psychology. Walden, for its part, maintains
that it did not represent to Johnson that he would be eligible to become a licensed psychologist
by virtue of completing the Walden psychology program with a specialization in health
psychology. Walden argues that the materials describing its psychology program reviewed by
Johnson clearly indicated that neither the sports psychology specialization (in which Johnson was
initially enrolled) nor the health psychology specialization (to which Johnson transferred after
Walden discontinued its sports psychology specialization) was a specialization designed to
prepare graduates for licensure as psychologists.
With regard to the question of whether Walden made or published false and/or
misleading representations concerning its psychology program, Dr. Steinberg's report contains
the following response:
Yes. Because Walden University's clinical, counseling, and school
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psychology doctoral programs are neither accredited by the American
Psychological Association nor jointly designated by the Association of
State and Provincial Psychology Boards and the National Register of
Health Service Providers in Psychology (a fact that Walden has openly
acknowledged), graduates may not sit for the national psychology
licensure examination unless special exceptions are granted, on a
case-by-case basis, by the psychology licensing boards of most states.
(Doc. # 25-2, p. 2.) (emphasis added) Dr. Steinberg's opinions as they relate to the Walden
program issues are presented in terms of Walden's "clinical, counseling, and school psychology
doctoral programs." The Psychology Student Handbook provided to Johnson when he enrolled at
Walden identified seven professional specializations: clinical psychology, counseling
psychology, health psychology, organizational psychology, school psychology, and sports
psychology. According to the Handbook, "[c]linical, counseling, and school psychology are
specializations designed to prepare graduates for licensure as a psychologist." (Doc. # 27-4, p.
18.) Johnson was never enrolled in any of those three psychology specializations at Walden.
Since Dr. Steinberg's opinion as it relates to the Walden program issues is based on three
psychology specializations in which Johnson was never enrolled, the Court finds that Dr.
Steinberg's testimony would not be '"sufficiently tied to the facts of the case that it will aid the
[factfinder] in resolving a factual dispute [relating to the Walden program issues].'" In re. Rezulin
Products Liability Litigation, 441 F. Supp. 2d 567, 576 (S.D.N.Y. 2006) (quoting Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 591 (1993)). Consequently, the Court grants
Walden's motion to preclude as it pertains to the testimony and reports of Dr. Steinberg relating
to the Walden program issues, i.e., Dr. Steinberg's responses to questions 1, 2, and 4 in his
written report dated January 12, 2009. (Doc. # 25-2.)

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Lost Income
Expert testimony must be presented by "a witness qualified as an expert by knowledge,
skill, experience, training, or education . . . ." Fed. R. Evid. 702. Walden contends that Dr.
Steinberg is not qualified to offer expert testimony on Johnson's earning potential. Walden
further contends that Dr. Steinberg's opinion as to Johnson's lost income based on his inability to
practice as a psychologist in private practice lacks a proper factual basis. Johnson argues that Dr.
Steinberg's "extensive and long-standing experience as a clinical psychologist" and "extensive
and long-standing contacts within the psychological community" qualify him "to apply reliable
data concerning the compensation earned by practicing psychologists to the facts of the case."
(Doc. # 30, p. 11.)
"A witness's qualifications can only be determined by comparing the areas in which the
witness has superior knowledge, skill, experience, or education with the subject matter of the
witness's testimony." In re Fosamax Products Liability Litigation, 645 F. Supp. 2d 164, 172
(S.D.N.Y. 2009) (internal quotation marks omitted). The "subject matter of the witness's
testimony" at issue is Johnson's earning potential as a practicing psychologist. Dr. Steinberg
clearly has "superior skill, experience, or education" with respect to certain areas of the practice
of psychology. Dr. Steinberg testified at his deposition that "the core strongest expertise that I
have . . . would be as a forensic neuropsychologist, the diagnosis and treatment of emotional
disorders and potential brain dysfunction in clinical patients . . . and applying that knowledge in
both clinical settings and forensic contexts." (Doc. 25-4, p. 25 (Tr. p. 90).) He also testified,
however, that he has no expertise in income tax issues, employee benefits, mathematics,
economics, accounting, or present value calculations. (Id. at 26 (Tr. p. 95).) Dr. Steinberg's
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opinions relating to lost income are based entirely on his review of the results of a survey of
members' salaries conducted by the American Psychological Association ("APA") in 2007.
Apart from "very informal[] and very sporadic[] . . . conversations with colleagues," Dr.
Steinberg himself has never done any independent research or analysis into the salaries of
psychologists. (Id. At 11 (Tr. p. 35).)
The Court recognizes that "[q]ualification as an expert is viewed liberally and may be
based on a broad range of knowledge, skills, and training." In re Fosamax Products Liability
Litigation, 645 F. Supp. 2d at 172. However, "[t]he Rules [of Evidence] recognize that there is
some limit to every expert's expertise and that he can not be allowed to go beyond it. For
example, no medical doctor is automatically an expert in every medical issue merely because he
or she has graduated from medical school or has achieved certification in a medical specialty."
O'Conner v. Commonwealth Edison Co., 807 F. Supp. 1376, 1390 (C.D. Ill. 1992). The Court's
acceptance of Dr. Steinberg as an expert qualified to testify on the issue of Johnson's lost income
would be tantamount to a determination that any and every practicing psychologist who has read
an APA salary survey is, solely on that basis, qualified to present expert testimony as to the lost
income of someone who has been prevented from practicing psychology. The Court does not find
such a sweeping determination to be consistent with its function of "ensur[ing] that the expert
will actually be testifying on issues or subject matter[s] within his or her area of expertise."
Arista Records LLC v. Lime Group LLC, No. 06 CV 5936 (KMW), 2011 U.S. Dist. LEXIS
47416, at *8 (S.D.N.Y. April 29, 2011) (internal quotation marks omitted).
Even if the Court found Dr. Steinberg qualified as an expert on the issue of lost
income, the question would remain as to "whether the proffered testimony has a sufficiently
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'reliable foundation' to permit it to be considered." Campbell v. Metropolitan Property &
Casualty Insurance Co., 239 F.3d 179, 184 (2d Cir. 2001) (quoting Daubert, 509 U.S. at 597).
While the inquiry into the reliability of expert testimony is a flexible one, "the district court
should undertake a rigorous examination of the facts on which the expert relies, the method by
which the expert draws an opinion from those facts, and how the expert applies the facts and
methods to the case at hand." Amorgianos v. Amtrak, 303 F.3d 256, 267 (2d Cir. 2002).
As mentioned above, Dr. Steinberg's opinion as to lost income is based entirely on his
review of a 2007 APA salary survey. At his deposition, Dr. Steinberg testified that he didn't
know who had authored the survey, had no way of verifying that the report is accurately
reflecting the information collected by the APA, and didn't respond to the survey himself. In his
brief opposing Walden's motion to exclude, Johnson argues that the APA survey data is
"methodical and highly reliable . . ." (Doc. # 30, p. 12.) In support of that argument, Johnson
represents that Dr. Steinberg testified at his deposition that "[b]ecause the American
Psychological Association is the organization for practicing psychologists . . . the vast majority of
[practicing psychologists] are members of the APA." In fact, Dr. Steinberg testified at his
deposition that "I don't have any specific numerical percentage [of psychologists in the United
States who are members of the APA] . . . . Because the American Psychological Association is
the organization for practicing psychologists, I would assume that the vast majority of people are
members of the APA." (Doc. # 25-4, p. 10 (Tr. pp. 32-33)) (emphasis added). It appears from
the Introduction section of the 2007 APA salary survey that approximately 52,000 individuals
"were eligible for inclusion in the study," (doc. # 25-6, p. 4), and approximately 13,000
individuals "responded to the survey either through the web or the paper version." (Id.) Johnson
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has not established that "the proffered testimony has a sufficiently reliable foundation to permit it
to be considered." Campbell, 239 F.3d at 184 (internal quotation marks omitted). On the basis of
the evidence before it, the Court finds "that there is simply too great an analytical gap between
the data and the opinion proffered." General Electric Co. v. Joiner, 522 U.S. 136, 146 (1997).
"The party seeking to rely on expert testimony bears the burden of establishing, by a
preponderance of the evidence, that all requirements have been met." Arista Records, 2011 U.S.
Dist. LEXIS 47416, at *6 (citing Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579,
593 n.10). The Court concludes that in addition to not establishing that Dr. Steinberg is qualified
to testify on the issue of lost income, Johnson has also not met his burden of establishing the
reliability of the testimony proffered on that issue.
CONCLUSION
For the foregoing reasons, Walden's motion to preclude the expert testimony of Brett
Steinberg, Ph.D. (doc. # 24) is GRANTED.

SO ORDERED this 8th day of June, 2012.

________/s/ DJS_____________________________________________
DOMINIC J. SQUATRITO
UNITED STATES DISTRICT JUDGE

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