Nkemakolam et al v. St. John's Military School et al

Filing 421

MEMORANDUM AND ORDER re: 330 Sealed Motion. IT IS THEREFORE ORDERED BY THE COURT THAT defendant's motion to exclude expert testimony by Dr. Roger Pitman (Doc. ## 330 / 331 ) is denied. IT IS FURTHER ORDERED BY THE COURT THAT defendant's motion to exclude expert testimony by Dr. Shirley Taylor (Doc. ## 330 / 332 ) is granted in part and denied in part, as set forth herein. IT IS FURTHER ORDERED BY THE COURT THAT defendant's motion to exclude expert testimony by Carol Hotchkiss (Doc. ## 330 / 333 ) is denied. Signed by District Judge John W. Lungstrum on 02/24/2014. (ses)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

YOLANDA NKEMAKOLAM,
as Parent and Next Friend of K.N., et al.,

)
)
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Plaintiffs,
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v.
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ST. JOHN’S MILITARY SCHOOL,
)
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Defendant.
)
)
_______________________________________)

Case No. 12-2132-JWL

MEMORANDUM AND ORDER
This matter comes before the Court on the motions by defendant to exclude expert
testimony by Dr. Roger Pitman (Doc. ## 330/331), Dr. Shirley Taylor (Doc. ##
330/332), and Carol Hotchkiss (Doc. ## 330/333). For the reasons set forth below, the
motions concerning Dr. Pitman and Ms. Hotchkiss are denied, and the motion
concerning Dr. Taylor is granted in part and denied in part.

I.

Governing Standards

In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the
Supreme Court instructed that district courts are to perform a “gatekeeping” role
concerning the admission of expert scientific testimony. See id. at 589-93; see also
Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137, 147-48 (1999). The admissibility of

expert testimony is governed by Rule 702 of the Federal Rules of Evidence, which
states:
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.
Fed. R. Evid. 702.
In order to determine that an expert’s opinions are admissible, this Court must
undertake a two-part analysis: first, the Court must determine that the witness is
qualified by “knowledge, skill, experience, training, or education” to render the opinions;
and second, the Court must determine whether the witness’s opinions are “reliable”
under the principles set forth in Daubert and Kumho Tire. See Ralston v. Smith &
Nephew Richards, Inc., 275 F.3d 965, 969 (10th Cir. 2001). The rejection of expert
testimony is the exception rather than the rule. See Fed. R. Evid. 702 advisory
committee notes.
To qualify as an expert, the witness must possess such “knowledge, skill,
experience, training, or education” in the particular field as to make it appear that his or
her opinion would rest on a substantial foundation and would tend to aid the trier of fact
in its search for the truth. See LifeWise Master Funding v. Telebank, 374 F.3d 917, 928
(10th Cir. 2004). In determining whether the proffered testimony is reliable, the Court
assesses whether the reasoning or methodology underlying the testimony is scientifically
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valid and whether that reasoning or methodology can be properly applied to the facts in
issue. See Daubert, 509 U.S. at 592-93. The Daubert Court listed four factors relevant
to assessing reliability: (1) whether the theory has been tested; (2) whether the theory has
been subject to peer review and publication; (3) the known or potential rate of error
associated with the theory; and (4) whether the theory has attained widespread or general
acceptance. See id. at 592-94. In Kumho Tire, however, the Supreme Court emphasized
that these four factors are not a “definitive checklist or test” and that a court’s inquiry
into reliability must be “tied to the facts of a particular case.” See Kumho Tire, 526 U.S.
at 150. In some cases, “the relevant reliability concerns may focus upon personal
knowledge or experience,” rather than the Daubert factors and scientific foundations.
See id. (quoted in Bitler v. A.O. Smith Corp., 400 F.3d 1227, 1235 (10th Cir. 2004)).
The district court has “considerable leeway in deciding in a particular case how to go
about determining whether particular expert testimony is reliable.” See id. at 152.

II.

Motion to Exclude Expert Testimony of Dr. Roger Pitman

Defendant seeks to exclude testimony by Dr. Roger Pitman, a psychiatrist, who
has rendered opinions on four of the plaintiffs, including assigning mental health
impairment percentages for each of those plaintiffs. Defendant does not challenge Dr.
Pitman’s qualifications, but instead argues that Dr. Pitman’s methodology and opinions
are not reliable. In making that argument, however, defendant has failed to provide any
evidence or authority—from another expert or from literature or legal
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precedent—suggesting that Dr. Pitman’s methodology is unreliable. Instead, defendant
has cited only Dr. Pitman’s own deposition testimony and expert reports, in asking the
Court simply to conclude on its own, within a specialized medical field, that
Dr. Pitman’s conclusions are so unreliable as to merit exclusion. The Court is unwilling
to do so. Accordingly, this motion is denied. The Court addresses defendant’s specific
arguments in turn.
Defendant first argues that Dr. Pitman’s opinions concerning one plaintiff are
unreliable because he changed answers indicated by the plaintiff on written tests, which
changes affected the categories into which the plaintiff fell for diagnostic purposes. Dr.
Pitman explained those “changes” (Dr. Pitman took issue with that characterization) in
his report and deposition, however. In one case, his interview with the plaintiff revealed
that the reason given for plaintiff’s answer did not actually support the particular trait
(over-reporting), and Dr. Pitman disclosed that explanation in his expert report. In the
other instance, Dr. Pitman changed the plaintiff’s initial answers because of the
interview, consistent with that test’s instructions that the interviewer should make the
final judgment concerning the questions based on the interview. In making this
argument, defendant did not bother to address Dr. Pitman’s explanations, even in its
reply brief. Accordingly, defendant has not provided any evidence or authority to
suggest that Dr. Pitman acted improperly with respect to those answers.
The Court is also not persuaded by defendant’s other arguments. Defendant
complains that Dr. Pitman interviewed one plaintiff by telephone and allowed that
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plaintiff to complete the written tests at his home. Defendant also complains that two
other plaintiffs were allowed to complete their tests with parents in the same room, while
noting that those plaintiffs’ answers included cross-outs and changes. Defendant
suggests that Dr. Pitman could not be certain that these plaintiffs’ parents did not help
with the answers. The Court rejects these arguments as a basis to find his methodology
unreliable. Dr. Pitman testified that he instructed plaintiffs to complete the tests without
conferring with anyone, and he testified that the applicable standards allowed him to
render an opinion concerning one plaintiff based on the telephone interview, the
plaintiff’s answers to the written tests, and the various medical records and documents
he reviewed. Defendant has not provided any evidence or authority suggesting that Dr.
Pitman’s procedures in this regard were improper or rendered his opinions unreliable.
Particularly speculative is defendant’s suggestion that Dr. Pitman could have been fooled
into talking to someone else when he believed he was conducting the telephone
interview of one plaintiff, given Dr. Pitman’s review of that plaintiff’s medical records,
his eventual receipt of the written test answers, and his discussion with that person of
incidents occurring at defendant school.
Defendant argues that Dr. Pitman’s opinions are unreliable because he
administered the standard version of one test to these plaintiffs instead of using the
adolescent version of that test. Despite Dr. Pitman’s testimony that he had never heard
of the adolescent version of the test, defendant has failed to provide any evidence of the
existence of that version, let alone any evidence or argument as to why the standard
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version could not be used for these plaintiffs given their ages. Nor did defendant in its
reply brief attempt to refute plaintiff’s argument that no such adolescent version exists
(although defendant did not withdraw this argument). Accordingly, the Court rejects this
basis for exclusion.
The Court also rejects Dr. Pitman’s use of percentages in his impairment ratings
as a basis for exclusion of his expert testimony. Again, defendant has failed provide any
evidence or authority on the issue. Defendant had the opportunity to probe the bases for
Dr. Pitman’s percentages at his deposition, and defendant has not explained why an
expert cannot assign such percentages based on his training and experience.
Finally, defendant complains that Dr. Pitman failed to consider alternative
explanations for these plaintiffs’ conditions, including pre-existing factors and behavior
prior to their experiences at defendant school. The Court rejects these arguments for
exclusion, as such dissatisfaction with Dr. Pitman’s results go to the weight of his
opinions and not to their admissibility. Dr. Pitman’s reports reveal that he relied on a
number of sources for his opinions, including the histories of the plaintiffs prior to their
attendance at defendant school. Indeed, Dr. Pitman did include diagnoses other than
PTSD and did attribute portions of these plaintiffs’ impairments to causes other than
their treatment at the school.
Accordingly, the Court denies the motion to exclude Dr. Pitman’s testimony.

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III.

Motion to Exclude Expert Testimony of Dr. Shirley Taylor

Defendant moves to exclude the expert testimony of Dr. Shirley Taylor. Dr.
Taylor, an expert retained by plaintiffs, is a psychologist specializing in adolescents.
According to her report, Dr. Taylor was asked to provide an expert opinion concerning
how “the diagnosis of Post Traumatic Stress Disorder (PTSD) presents and impacts
adolescent boys in terms of their behavior and emotional status, including [four
plaintiffs], in light of what they endured while attending St. John’s Military School.”
Defendant argues that Dr. Taylor did not have a sufficient basis to offer any
opinions regarding PTSD in and the future treatment needs of these specific plaintiffs.
In that regard, defendant notes that although Dr. Taylor reviewed Dr. Pitman’s reports
concerning these plaintiffs, she did not meet or interview the plaintiffs, did not speak to
those plaintiffs’ parents or doctors, and did not review the plaintiffs’ medical records.
In their brief response, plaintiffs “concede that they will not have Dr. Taylor
provide testimony to suggest the counseling needs for each boy diagnosed with PTSD.”
Plaintiffs appear to be addressing only Dr. Taylor’s statement at the conclusion of her
report that “the boys who experienced and/or witnessed abuse should have therapy
available to them throughout their lifetime.” Plaintiffs have not explained, however, why
Dr. Taylor should be permitted to offer any opinions (not just those related to future
treatment) specific to these four plaintiffs. In her report, Dr. Taylor included sections
on the four plaintiffs, in which she discussed Dr. Pitman’s reports and offered opinions
concerning these plaintiffs’ psychological states in light of their alleged experiences at
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the school. Plaintiffs have not addressed how Dr. Taylor may reliably opine on a
plaintiff’s psychological state, including the likely psychological effects on that plaintiff
from specific events, without having interviewed the plaintiff or thoroughly reviewed the
plaintiff’s medical and psychological history. Accordingly, plaintiffs have not met their
burden of showing that the proffered expert testimony is reliable and has a sufficient
basis. Nor may Dr. Taylor simply repeat Dr. Pitman’s opinions or recite evidence of
incidents regarding these plaintiffs. See Ash Grove Cement Co. v. Employers Ins. of
Wausau, 246 F.R.D. 656, 661 (D. Kan. 2007) (Lungstrum, J.) (although an expert may
rely on other experts’ opinions if they inform or contribute to his own independent
opinion, he may not simply parrot or recite the opinions and knowledge or other experts
or fact witnesses). Accordingly, the Court grants defendant’s motion to the extent that
Dr. Taylor will not be permitted to offer any expert testimony relating specifically to any
of these four plaintiffs.
Plaintiffs also intend to offer expert testimony by Dr. Taylor concerning PTSD
in adolescents generally. In its brief, defendant did not make any specific argument why
such testimony would not be admissible. Accordingly, the Court will not exclude such
testimony by Dr. Taylor, and defendant’s motion is thus denied to the extent that
defendant seeks to preclude Dr. Taylor from testifying altogether.

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IV.

Motion to Exclude Expert Testimony of Carol Hotchkiss

Plaintiffs intend to call Carol Hotchkiss to testify as an expert on standards and
practices for boarding schools relating to the protection and care of their students. In
moving to exclude that testimony, defendant challenges both the qualifications of Ms.
Hotchkiss and the reliability of her opinions.
Defendant does not dispute that Ms. Hotchkiss is qualified to serve as an expert
concerning private residential schools. Defendant argues, however, that Ms. Hotchkiss
is not qualified to offer an expert opinion in this case because she has not been employed
at a military school and has not worked directly with military school cadets. The Court
rejects this argument. Defendant has not shown that military schools (however defined)
are subject to different legal standards than those that govern other residential schools.
Moreover, Ms. Hotchkiss testified that she has consulted with military schools
concerning their practices and policies. Accordingly, the Court concludes that there is
no basis to exclude Ms. Hotchkiss’s testimony for lack of sufficient expert qualifications.
Defendant also challenges the reliability of Ms. Hotchkiss’s opinions. The Court
concludes, however, that defendant’s specific complaints go to the weight of Ms.
Hotchkiss’s opinions and not to their admissibility. For instance, defendant argues that
other military schools cited with approval by Ms. Hotchkiss actually have manuals that
reveal discipline structures similar to that used by defendant. That argument, however,
does not bear on the reliability of Ms. Hotchkiss’s method of relying on her experience
with and knowledge of practices at other military schools. Defendant also argues that
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certain organizations cited by Ms. Hotchkiss do not actually publish standards
specifically applicable to military schools, and that Ms. Hotchkiss therefore relies only
on her experience and her own book. Such reliance does not make her opinions
unreliable, however—defendant does not dispute the statements in Ms. Hotchkiss’s
report that her book is used in over 200 boarding schools and that there is no comparable
published work; nor does Ms. Hotchkiss’s reliance on her own extensive experience
disqualify her from rendering an opinion. Moreover, Ms. Hotchkiss’s application of a
standard of care for boarding schools generally is not a basis for exclusion, as defendant
has not shown that a different legal standard applies in the case of military schools, as
noted above.
Finally, defendant complains about specific figures given by Ms. Hotchkiss. For
instance, defendant objects to Ms. Hotchkiss’s testimony that “an acceptable amount of
incidents over a five-year period” at a school would be 25. Ms. Hotchkiss did not proffer
that opinion of her own accord, however, but rather she gave that answer upon being
asked for a figure upon cross-examination by defendant’s counsel. Defendant was
entitled to inquire about the basis for that opinion in the deposition, and the fact that the
witness may have relied on her experience for that answer does not present a ground for
exclusion. Similarly, Ms. Hotchkiss’s reliance on her experience is not necessarily
improper with respect to her opinion that “[a] typical boarding school might include 1820% of its students with [certain] special needs and carefully evaluate each case based
on their ability to provide effective support services.”
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The Court denies in its entirety defendant’s motion to exclude Ms. Hotchkiss’s
expert testimony.

IT IS THEREFORE ORDERED BY THE COURT THAT defendant’s motion
to exclude expert testimony by Dr. Roger Pitman (Doc. ## 330/331) is denied.

IT IS FURTHER ORDERED BY THE COURT THAT defendant’s motion to
exclude expert testimony by Dr. Shirley Taylor (Doc. ## 330/332) is granted in part
and denied in part, as set forth herein.

IT IS FURTHER ORDERED BY THE COURT THAT defendant’s motion to
exclude expert testimony by Carol Hotchkiss (Doc. ## 330/333) is denied.

IT IS SO ORDERED.

Dated this 24th day of February, 2014, in Kansas City, Kansas.

s/ John W. Lungstrum
John W. Lungstrum
United States District Judge

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