Finnegan et al v. Myers et al
Filing
321
OPINION AND ORDER granting in part and denying in part 205 Motion to exclude or limit the testimony of eight of Plaintiffs expert Witnesses. Signed by Judge Rudy Lozano on 9/14/2015. (rmn)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
ROMAN FINNEGAN, et al.,
Plaintiffs,
vs.
LAUREL MYERS, et al.,
Defendants.
)
)
)
)
)
)
)
)
)
NO. 3:08-CV-503
OPINION AND ORDER
This matter is before the Court on the Motion to Exclude or
Limit Testimony of Eight of Plaintiffs’ Expert Witnesses, filed by
the State Defendants on October 17, 2014 (DE #205).
For the
reasons set forth below, the motion is GRANTED IN PART and DENIED
IN PART as described in the body of this order.
BACKGROUND
Plaintiffs, Roman Finnegan, Lynnette Finnegan, Jonathon Abair,
Tabitha Abair, and Katelynn Salyer (collectively, “Plaintiffs”),
have sued several defendants in this case, including the following
State Defendants: Laurel Myers, the Director of the Pulaski County
Department of Child Services (“DCS”) during the period in question
(“Defendant
Myers”),
Regina
McAninch,
an
investigator
and
caseworker for DCS (“Defendant McAninch”), Tracy Salyers, a family
case manager for DCS (“Defendant Salyers”), Reba James, a regional
manager for the Department of Child Services (“Defendant James”),
James Payne, former director of the Department of Child Services
(“Defendant Payne”), and Jennifer McDonald, an Indiana State Police
detective (“Defendant McDonald”).
The claims involve the State
Defendants’ interactions with Plaintiffs over the course of several
years related to the treatment and death of fourteen year old
Jessica Salyer (“Jessica”).
The State Defendants have filed the
current motion seeking to exclude or limit the testimony of several
of Plaintiffs’ experts.
Initially, the State Defendants objected
to eight of Plaintiffs’ experts, but they withdrew their motion as
to five of those witnesses in their reply brief (DE #260); thus,
only three experts remain in dispute, namely Bruce L. Lambert,
Ph.D. (“Professor Lambert”), Shaku S. Teas, M.D. (“Dr. Teas”), and
James A. Kenny, Ph.D. (“Dr. Kenny”).
DISCUSSION
Federal Rule of Evidence 702, which governs expert testimony,
provides the following:
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) the testimony is based upon
sufficient facts or data; (c) the testimony is
2
the product of reliable principles and
methods; and (d) the expert has reliably
applied the principles and methods to the
facts of the case.
F.R.E. 702.
In addition, in Daubert v. Merrell Dow Pharms., Inc.,
the Supreme Court fashioned a two-prong test of admissibility for
evidence based on the “scientific knowledge” mentioned in Rule 702.
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592 (1993). To
be admissible, evidence must be both relevant and reliable. Id. at
589; see also Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152
(1999) (noting the objective of court’s gatekeeping requirement is
to ensure reliability and relevancy of expert testimony).
Under the reliability prong, scientific evidence must be
reliable in the sense that the expert’s testimony must present
genuine scientific knowledge.
Daubert, 509 U.S. at 592-93; Deimer
v. Cincinnati Sub-Zero Prods. Inc., 58 F.3d 341, 344 (7th Cir.
1995).
the
Generally, the expert witness must employ in the courtroom
same
level
of
intellectual
rigor
that
practice of an expert in the witness’s field.
152.
characterizes
the
Kumho, 526 U.S. at
Specifically, a court may, but is not required to, consider
a nonexclusive list of four factors in assessing reliability: (1)
whether the expert’s theories and techniques can be verified by the
scientific method through testing; (2) whether the theories and
techniques have been subjected to peer review and publication; (3)
whether the theories and techniques have been evaluated for their
potential
rate
of
error;
and
(4)
3
whether
the
theories
and
techniques have been generally accepted by the relevant scientific
community.
Daubert, 509 U.S. at 593-94.
However,
it
is
important
to
note
that
“the
measure
of
intellectual rigor will vary by the field of expertise and the way
of demonstrating expertise will also vary.”
Mgmt., 102 F.3d 256, 263 (7th Cir. 1996).
Tyus v. Urban Search
As the Seventh Circuit
pointed out in United States v. Allen, 269 F.3d 842, 846 (7th Cir.
2001), the Advisory Committee notes to Rule 702 note that “[i]n
certain fields, experience is the predominant, if not the sole,
basis for a great deal of reliable expert testimony.”
Evid.
702,
2000
advisory
committee
notes.
“[T]he
Fed. R.
test
of
reliability is ‘flexible,’ and Daubert’s list of specific factors
neither necessarily nor exclusively applies to all experts or in
every case.”
Kumho Tire Co., Ltd., 526 U.S. at 141-42.
Under the relevance prong, the testimony must assist the trier
of fact to understand the evidence in the sense that it is relevant
to or “fits” the facts of the case.
Daubert, 509 U.S. at 591;
Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th Cir. 2000).
In
other words, the testimony must be such that the jury can apply it
in a meaningful way to the facts at hand.
essentially
represents
an
inquiry
This “fit” analysis
similar
to
if
not
indistinguishable from the basic evidentiary inquiries into whether
evidence is relevant and, if so, whether its probative value is
nonetheless substantially outweighed by, among others, the danger
4
of unfair prejudice and jury confusion.
See Daubert, 509 U.S. at
595; Ayers v. Robinson, 887 F. Supp. 1049, 1058-59 (N.D. Ill.
1995).
In this case, as noted above, the State Defendants have
objected to the testimony of Professor Lambert, Dr. Teas, and Dr.
Kenny.
The Court will address each objection in turn.
Professor Lambert
In their motion, the State Defendants ask that Professor
Lambert’s testimony be stricken or limited because they argue that
there is no way to determine the reliability of his testimony and
because he fails to provide an adequate basis for his opinions.
They assert that his report is “sketchy and vague,” and they take
issue with his alleged lack of methodology, especially in light of
the fact that he only reviewed “some” of the pharmaceutical
information.
impossible
Ultimately, the State Defendants argue that “[i]t is
to
test
the
reliability
of
[Professor
Lambert’s]
conclusions when he provides no methodology or even analysis as to
how he was able to make that conclusion when his review of the
documents was severely limited.”
(DE #217-1, p. 9.)
Even if not
totally excluded, the State Defendant’s request that Professor
Lambert’s testimony be limited to the discussion of prescription
5
errors.1
Plaintiffs, on the other hand, argue that Professor
Lambert is a leading national expert on prescription errors, and
that his review of the relevant prescription records, along with
the literature on warfarin, was sufficient to provide him with the
information he needed to make a clear and concise report regarding
the alleged errors in this case.
To the extent that the State Defendants take issue with
Professor Lambert’s credentials, the Court has considered his
qualifications and finds them sufficient for purposes of this
motion. See United States v. Vitek Supply Corp., 144 F.3d 476, 486
(7th Cir. 1988) (“Because an expert’s qualifications bear upon
whether he can offer special knowledge to the jury, the Daubert
framework permits - indeed, encourages - a district judge to
consider the qualifications of a witness.”)
As Plaintiffs point
out, although Professor Lambert’s Ph.D. is in communications rather
than medicine, he was a Professor in the Department of Pharmacy
Administration and Clinical Professor of Pharmacy Practice at the
University of Illinois at Chicago for over twenty years. (DE #2431, pp. 1, 5.)
Professor Lambert’s substantial body of research
focuses on “health communication, drug name confusion, patient and
medication safety, health literacy, health information technology,
prescribing
behavior,
pharmacoepidemilogy,
1
pharmaceutical
In their reply brief, the State Defendants seemingly give up their
argument that Professor Lambert’s testimony be excluded in its entirety and
focus on their assertion that his opinion testimony should be limited to
prescription errors. (DE #260, p. 4.)
6
promotion,
health
communication,
reform.”
outcomes
information
(Id. at 1.)
associated
retrieval,
with
and
provider-patient
medical
liability
Professor Lambert’s publications have
appeared in well-known peer-reviewed medical journals including
JAMA (the Journal of the American Medical Association).
generally Id. at 6-28).
(Id.; see
Among years of other professional service
related to prescription errors and medication safety, Professor
Lambert has served as a Special Government Employee for the U.S.
FDA and as a member of the U.S. Pharmacopeia’s Consumer Interest
and Health Education Advisory Panel.
(Id. at 1, 6.)
Professor
Lambert is qualified as an expert of prescription errors.
The State Defendants also take issue with Professor Lambert’s
alleged lack of methodology and the fact that he only acknowledges
reviewing “some” of the pharmaceutical information related to
Jessica’s death. They assert that there is “no way of knowing what
all he reviewed, or whether he reviewed the full medical records
related to [Jessica’s] prescriptions.”
(DE #217-1, pp. 8-9.)
The
Court finds this argument unavailing.
Professor Lambert’s report
clearly indicates (and even attaches as exhibits) the specific,
relevant prescription information that he reviewed, including a
printout of Jessica’s medications from June 15 through November 8,
2005,2 provided by Fagen Pharmacy, and handwritten prescriptions
2
Professor Lambert’s report indicates that the period was for those
same months in 2006, but, based upon the factual background of this case as
well as the actual pharmacy records attached to his report, it is clear that
7
dated October 12, 2005, from Jessica’s family doctor, Dr. Bartush.
(DE #243-1, pp. 29-31.) The Court agrees with Plaintiffs that this
limited review of the relevant prescription records is appropriate
in
this
case
given
Professor
Lambert’s
area
of
expertise.
Professor Lambert’s report methodically sets forth the specific
prescription
records
he
reviewed,
notes
his
understanding
of
Jessica’s medical records as related to her cardiologist’s most
recent
prescribing
history
warfarin,3
of
describes
the
large
increase in warfarin in October of 2005 and its potential hazard,4
cites to literature regarding the common occurrence of prescription
errors in general and the risks and dangers of warfarin overdose in
specific, notes that, because of those dangers, the FDA requires a
the reference to 2006 is a typographical error.
(See DE #243-1, p. 29.)
3
For example, after noting that the prescription records show an
increase from 2.5 mg to 3 mg of warfarin on September 16, 2005, Professor
Lambert states that “[i]t is my understanding that this change was made by
Jessica’s cardiologist in response to a relatively low INR of 1.18 (target
2).” (DE #243-1, p. 2.) Similarly, after noting that the prescription
records indicate an increase from 3 mg to 7 mg of warfarin on October 13,
2005, Professor Lambert states that “[i]t is my understanding that the October
prescription changes were not approved by Jessica’s cardiologist and do not
appear in Jessica’s medical records.” (Id.) These assumptions may be
challenged by the State Defendants during cross-examination at trial, but they
do not present a barrier to admissibility at this stage. See Cooper v. Carl
A. Nelson & Co., 211 F.3d 1008, 1021 (7th Cir. 2000) (“the accuracy and
truthfulness of the underlying medical history is subject to meaningful
exploration on cross-examination and ultimately to jury evaluation” and “goes
to the weight of the medical testimony, not its admissibility.”)
4
Professor Lambert states that “[i]t is unlikely that an increase from
3 mg to 7 mg would have been deliberate since increases in warfarin should be
done slowly and only in response to recent laboratory tests (e.g. PT/INR).
Since individual reactions to changes in warfarin dose vary widely, even
relatively minimal changes in doses must be carefully monitored. It does not
appear that this warfarin dose increase, more than doubling the dose, was
prompted by any specific laboratory test result.” (DE #243-1, p. 2.)
8
black box warning label on warfarin for bleeding risk,5 and arrives
at his conclusions based on those factors.
Professor Lambert
concludes:
12.
In this case, it appears that a
prescription error may have led to an
unintentional warfarin overdose.
Given the
magnitude of the error (which resulted in more
than doubling the warfarin dosage), bleeding
due to unintentional warfarin overdose should
be considered as a cause of death.
13.
Given the unexplained increase in
Jessica’s
warfarin
dose
and
the
discontinuation
of
phenytoin,
serious
consideration
should
be
given
to
the
possibility that Jessica’s death was caused by
one or more prescribing errors, combined with
her underlying heart condition and reported
illness in the days before her death.
(DE #243-1, p. 3.)
While the State Defendants argue that Professor Lambert’s
report is sketchy and vague, the Court disagrees.
As the Supreme
Court noted in Kumho Tire, “[e]xperts of all kinds tie observations
to conclusions through the use of what Judge Learned Hand called
‘general truths derived from ... specialized experience.’”
Tire Co., Ltd., 526 U.S. at 148.
just that.
Kumho
Here, Professor Lambert has done
He has established specialized knowledge, experience,
and training in the field of prescription errors; he used that
experience
to
review
the
relevant
5
prescription
records
and
The warning begins: “WARNING: BLEEDING RISK. Warfarin sodium can
cause major or fatal bleeding. Bleeding is more likely to occur during the
starting period and with a higher dose (resulting in a higher INR.)” (DE #2431, p. 32.)
9
literature and then tied those observations to his conclusions.6
Professor Lambert’s report is not based on his subjective belief or
unsupported speculation and is thus reliable. And, because of this
and Professor Lambert’s qualifications as described above, his
report can offer the trier of fact assistance in understanding the
evidence and determining a fact in issue.
Thus, while the weight
of Professor Lambert’s opinions may be vulnerable to challenge upon
cross examination, the testimony is admissible.
Dr. Teas
Next, while the State Defendants do not argue that Dr. Teas is
unqualified, they do assert that her testimony should be limited to
the area of pathology.
Specifically, they take issue with Dr.
Teas’ testimony related to: (1) what the Department of Child
Services
(“DCS”)
workers
would
have
understood
about
certain
reports they may have received; (2) the qualifications of codefendant Dr. Antoinette Laskey (“Dr. Laskey”); and (3) the “normal
practice” regarding autopsy reports.
(DE #217-1, pp. 10-11.)
In
response, Plaintiffs provide a supplemental declaration of Dr.
6
The State Defendants assert that Professor Lambert should be
precluded from testifying as to the cause of Jessica’s death because he is not
a medical doctor; however, the Court finds Professor Lambert’s report simply
notes that “bleeding due to unintentional warfarin overdose should be
considered as a cause of death” and that “serious consideration should be
given to the possibility that Jessica’s death was caused by one or more
prescribing errors . . . .” (DE #243-1, p. 3) (emphasis added).
Appropriately, Professor Lambert does not opine as to the ultimate conclusion
regarding the cause or manner of Jessica’s death, and his statements fall
squarely within the scope of his expertise in prescription errors.
10
Teas.
(DE #243-5.)
They point out that she has performed over
6,000 autopsies, is board certified in anatomic, clinical, and
forensic pathology, and was a member of the Aurora child death
review team for ten years and was the Chair of that team for two
years.
(See id. at 1.)
Plaintiffs assert that commenting on the
reports and findings of other witnesses is well within Dr. Teas’
area of expertise, and they note that she is familiar with the
standards of normal autopsy reporting because she applies those
standards to her own work and to her evaluation of autopsy reports
written by others regularly. (DE #243, p. 15; see also DE #243-5.)
Dr. Teas’ report indicates that she reviewed photographs from
the first and second autopsies, the autopsy reports of John E.
Cavanaugh, M.D., the forensic pathologist who was retained by the
Jasper
County
Cavanaugh”),
Coroner
Dr.
to
Laskey’s
perform
report,
Jessica’s
the
Coroner’s
autopsy
(“Dr.
Verdict
with
reports from Drs. Pless and Leestma, email communications and notes
from Dr. Cavanaugh, email and other communications from Dr. Laskey,
the
depositions
Blankenship.
of
Dr.
Laskey,
(DE #213, p. 1.)
and
the
opinion
of
She sets forth her analysis of the
relevant documents in chronological order in her report.
1-5.)
Judge
(Id. at
Based upon her unchallenged expertise7 in the areas of
anatomic, clinical, and forensic pathology, the Court agrees with
Plaintiffs’ assertion that Dr. Teas is qualified to provide her
7
At least for purposes of this motion.
11
opinion on the normal practice of autopsy reporting.
As noted in
her supplemental declaration, and as would be expected from someone
with her background and qualifications, Dr. Teas states that she is
current on the general standards for conducting autopsies as set
forth in the checklists of the National Association of Medical
Examiners.
(DE #243-5, pp. 2-3; see also DE #199-5.)
As such, it
is not a great leap, nor is it outside her area of expertise, for
Dr.
Teas
to
review
autopsy
reports
of
others
and
provide
conclusions as to whether those reports deviate from the normal
reporting standards.
Examining reports, noting the findings, and
then applying the relevant standards to those reports to determine
if deficiencies exist is hardly unreliable methodology. And, it is
certainly relevant to the issues at hand.
Thus, the Court finds
that this testimony is admissible.
However, to the extent that Dr. Teas intends to testify
directly as to the state of mind of various DCS workers (i.e. “the
DCS
workers
may
not
have
been
accurately
understanding
and
reporting what Dr. Cavanaugh was saying”), the Court agrees with
the State Defendants that this “balancing [of] the medical evidence
with the thought processes of the defendants” should be excluded.
That said, it is perfectly appropriate, based on the rationale
described above, for Dr. Teas to testify regarding discrepancies
between the actual medical findings of those reports and the notes
of the DCS workers.
For example, Dr. Teas describes the notes of
12
the DCS workers as being “inconsistent with the autopsy reports as
well as with the effects of warfarin” and “inconsistent with the
pathological findings, as reported by Dr. Cavanaugh and as seen in
the autopsy slides and photographs.”
2.)
This is appropriate testimony.
(DE #213, p. 3; DE #243-5,
In her declaration, she also
describes terminology specific to the fields of anatomic, clinical,
and forensic pathology and how that terminology differs from the
meaning and significance attributed to those same words in common,
ordinary English.8
may
not
Again, this is appropriate; however, Dr. Teas
extrapolate
further
as
to
what
the
DCS
defendants
subjectively “understood” or what they personally reviewed.
Finally, to the extent that the State Defendants take issue
with Dr. Teas’ intent to testify as to the qualifications (or
alleged lack thereof) of Dr. Laskey, the Court agrees that this
testimony should be limited.
In her report, Dr. Teas opines:
Dr. Laskey did not have sufficient expertise
to understand or interpret the autopsy
reports, which do not describe extensive,
severe or widespread hemorrhages. She did not
have the expertise to evaluate the skull
fractures.
She also does not understand
warfarin, which can cause spontaneous bleeding
even on low doses. . . . Dr. Laskey further
did not understand that a review of the
microscopic slides would be needed in order to
date the hemorrhages.
8
Dr. Teas states, “To take a simple example, a pathologist uses the
term ‘blunt force trauma’ to refer to any trauma that does not penetrate the
skin. Thus, if a child stumbles and falls, with a minor bruise or even no
bruise at all, he or she has suffered ‘blunt force trauma.’ Police officers
and caseworkers often assign undue significance to this term even though all
of the words are commonly used in ordinary English.” (DE #243-5.)
13
(DE #213, p. 4; see also DE #243-5, p. 2.9)
Dr. Teas may testify
fully
those
as
to
her
own
qualifications
and
of
similarly
experienced and/or expert pathologists in her field, the alleged
deficiencies, errors, and mistaken conclusions found within Dr.
Laskey’s report, the alleged discrepancies and inconsistencies
between Dr. Laskey’s findings and those of Dr. Cavanaugh, and Dr.
Teas’ interpretation of the what those discrepancies indicate.
However,
she
may
qualifications,
not
directly
background,
or
opine
as
subjective
to
Dr.
Laskey’s
understanding
or
misunderstanding, as Dr. Teas’ report does not suggest that she
reviewed Dr. Laskey’s personal qualifications, nor does it identify
anything in her education, training, or experience that would give
her
specialized
knowledge
sufficient
to
judge
the
general
qualifications of other doctors.
To the extent that questions remain regarding Dr. Teas’
testimony during trial, the parties may approach the Court to
discuss the issue at sidebar.
9
In her supplemental declaration, Dr. Teas states, “Dr. Laskey's
report similarly did not reflect the pathological findings, as reported by Dr.
Cavanaugh and as seen in the autopsy slides and photographs. This reflects a
lack of expertise on the pathological issues and an apparent failure to
consult with Dr. Cavanaugh or others with expertise in these areas. Most
notably, Dr. Laskey failed to understand the possibility of postmortem
fractures caused at autopsy as were evident in this case, or the need to
examine the histology (microscopic slides) if the timing of particular
findings was an issue. She also appeared to be unfamiliar with Jessica’s
heart condition (evident and well described at autopsy) and her medications,
including warfarin, which is involved in cases handled by forensic
pathologists.”
14
Dr. Kenny
The
State
Defendants
testimony of Dr. Kenny.
also
ask
this Court to limit the
While they do not oppose Dr. Kenny’s
qualifications as they relate to psychology at this time, they do
oppose Dr. Kenny’s testimony about DCS policy and state and federal
law.
to
Plaintiffs assert that Dr. Kenny is qualified to testify as
those
matters
because
of
his
professional
and
personal
background, which includes testifying regularly in CHINS courts and
parenting over forty foster children of his own.
Dr. Kenny, a licensed clinical psychologist with a background
in social work, treated patients in his private practice from 1982
to 2011 for “mental and emotional disorders, addictions, parentchild
problems,
counseling.”
school
(DE
problems,
#246-6,
p.
6.)
and
He
marital
also
and
divorce
performed
“many
evaluations of intelligence, personality, sanity, and bonding as
well as custody evaluations and home studies for adoption.
(Id.)
Dr. Kenny was the Director and Clinical Psychologist of the JasperNewton Mental Health Center from 1975 to 1982, where he “completed
approximately 15 adoptive Home Studies for the Jasper County DFC.”
(Id.)
Prior
to
that,
he
was
a
caseworker
for
the
Florida
Department of Welfare and the Cook County Department of Public
Welfare.
(Id.)
Dr. Kenny is a member of several professional
associations including the American Psychological Association, the
Indiana Psychological Association, and the National Association of
15
Social Workers and has published articles in various professional
journals and popular magazines. (Id. at 7.) Dr. Kenny states that
he and his wife have twelve children and were licenced foster
parents for over twenty-five years, during which time they parented
over forty foster children.
In
his
report,
Dr.
(Id.)
Kenny
states
that
he
conducted
psychological evaluations of Roman and Lynnette Finnegan in 2007
for the purpose of evaluating their psychological health and to
provide a report for use by the court in the underlying CHINS
proceedings.
(Id. at 1.)
He describes the results of those
examinations, and he goes on to state that he continued to have
some involvement with the family after the girls (Tabitha Abair and
Katelynn Salyer) were returned home to the Finnegans.
(Id.)
Dr.
Kenny describes his review of the reunification process and details
his concerns with the investigative therapy that was used on the
girls and with the reunification timetable’s multiple required
services.
(Id. at 2.)
As part of that review, Dr. Kenny indicates
that he also examined the declaration of Dr. Randall Krupshaw and
agreed with his conclusions.
Dr. Kenny states:
[i]t further appeared that DCS may have failed
to follow other guidelines set forth in the
DCS Welfare Manual and required by state and
federal law, including relative placement and
increased visitations with friends and family,
including home/overnight visits with their
parents.
(Id.)
He opines that, “[i]f further services were needed, the
16
service plan should have been developed in conjunction with the
family, as required by state and federal law.”
(Id. at 4.)
To the extent that the State Defendants take issue with Dr.
Kenny’s testimony related to state and federal law, the Court
agrees that Dr. Kenny’s report has not set forth a basis to
conclude that he is qualified as an expert by knowledge, skill,
experience, training, or education to testify as to the law.
United
States
v.
Caputo,
517
F.3d
935,
942
(7th
Cir.
See
2008)
(district court was correct in keeping out proposed testimony of an
expert who would have testified about the meaning of a statute and
regulations because “[t]hat’s a subject for the court, not for
testimonial experts” and [t]he only legal expert in a federal
courtroom is the judge”).
As to the DCS Welfare Manual, the Court
finds Dr. Kenny’s proposed testimony (it “appeared that DCS may
have failed to follow other guidelines set forth in the DCS Welfare
Manual . . . including relative placement and increased visitations
with friends and family, including home/overnight visits with their
parents”) troubling in that he does not state in his report, nor is
it evident from his curriculum vitae, that he is familiar with the
DCS Welfare Manual itself.
The fact that Dr. Kenny and his wife
parented over forty foster children, while admirable, does not
necessarily lead to the conclusion that he had the requisite
knowledge of the DCS Welfare Manual needed to testify as an expert
to its content.
Thus, specific reference by Dr. Kenny to DCS’
17
alleged failure to follow the guidelines of the Welfare Manual
shall
be
limited
during
trial.
That
said,
Dr.
Kenny
has
established that he is qualified as an expert by knowledge,
experience, training, and education to testify as to psychology;
thus his conclusions as to whether DCS’ specific practices in this
case (i.e. placement and visitation procedures, the reunification
process and timetable, investigative therapy techniques, etc.)
caused Plaintiffs psychological damage and/or harm are appropriate.
Again, to the extent that questions remain regarding Dr.
Kenny’s testimony during trial, the parties may approach the Court
to discuss the issue at sidebar.
CONCLUSION
For the reasons set forth above, the motion (DE #205) is
GRANTED IN PART and DENIED IN PART as described in the body of this
order.
DATED: September 14, 2015
/s/ RUDY LOZANO, Judge
United States District Court
18
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?