HEARTS WITH HAITI INC et al v. KENDRICK

Filing 264

ORDER dismissing without prejudice 152 Motion in Limine to Exclude Opinion Testimony of Mr. Hamlyn. By JUDGE JOHN A. WOODCOCK, JR. (MFS)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
HEARTS WITH HAITI, INC.,
et al.,
Plaintiffs,
v.
PAUL KENDRICK,
Defendant.

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2:13-cv-00039-JAW

ORDER DISMISSING DEFENDANT’S MOTION IN LIMINE
Paul Kendrick seeks to exclude some of the designated expert testimony of
Geoffrey Scott Hamlyn, Executive Director of Hearts with Haiti, Inc. (HWH). The
Court concludes that some, but not all, of the proposed expert testimony may be
admissible and, after setting forth some general principles, dismisses the motion in
limine in anticipation of further development at trial.
I.

BACKGROUND
This is a contentious civil action in which HWH and Michael Geilenfeld assert

that Paul Kendrick has defamed them, placed them in a false light, invaded their
privacy, and tortiously interfered with their advantageous economic relations.
Verified Compl. and Demand for Jury Trial ¶¶ 89-105 (ECF No. 1). The Plaintiffs
claim that Mr. Kendrick published numerous defamatory statements, accusing Mr.
Geilenfeld, the Executive Director of St. Joseph Family of Haiti, of sexually abusing
children under his organization’s care, and further accusing HWH, a significant
financial contributor to the St. Joseph Family, of failing to protect the Haitian

children from Mr. Geilenfeld’s abuse. Id. ¶¶ 47-48. Mr. Kendrick has firmly denied
the essential allegations. Defenses and Answer (ECF No. 8).
A.

Paul Kendrick’s Positions

On March 21, 2014, Paul Kendrick filed a motion in limine, challenging
whether Geoffrey Scott Hamlyn, HWH’s Executive Director, should be allowed to
testify about (1) his understanding of the motivations of HWH’s donors; (2) hearsay
statements from HWH’s donors; (3) his “reach extender” methodology; and (4) his
“comparative revenue analysis.” Def.’s Mot. to Seal Attach. 1 Def.’s Mot. in Limine to
Exclude Op. Test. of Mr. Hamlyn (ECF No. 151) (Def.’s Mot.). Mr. Kendrick concedes
that Mr. Hamlyn may testify about matters within his personal knowledge, such as
“gross operating revenues, annual trends, and evidence of a significant loss of gross
revenues beginning on a particular date.”

Id. at 6.

However, Mr. Kendrick

strenuously argues that Mr. Hamlyn may not testify—either as a lay or expert
witness—about why donors did not donate because such testimony would be based
on inadmissible hearsay. Id. at 2-8. He further maintains that Mr. Hamlyn may not
testify as a supposed expert that HWH lost donations due to Mr. Kendrick’s alleged
defamation. Id. at 8-12. More specifically, Mr. Kendrick contends that Mr. Hamlyn’s
likely testimony about “reach extenders” and “comparative revenue analysis” does
not meet the necessary standards for scientific reliability. Id. In addition, he asserts
that Mr. Hamlyn’s comparative analysis opinions were not timely disclosed by the
Plaintiffs. Id. at 12-14. Finally, Mr. Kendrick argues that Mr. Hamlyn lacks the
necessary credentials to testify as a financial damages expert. Id. at 14.

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B.

HWH and Mr. Geilenfeld’s Responses

On April 21, 2014, HWH and Michael Geilenfeld responded to Mr. Kendrick’s
motion in limine, dismissing all of Mr. Kendrick’s arguments as being “without merit
on all points.”1 Pls.’ Opp’n to Def.’s Mot. in Limine at 1 (ECF No. 183) (Pls.’ Opp’n).
After reviewing the standards for the admissibility of expert testimony, the Plaintiffs
first respond to Mr. Kendrick’s attack on Mr. Hamlyn’s qualifications by arguing that
Mr. Hamlyn has “relevant experience in the fields of nonprofit fundraising,
budgeting, marketing, and donor outreach and donor database management, from
2002 to the present.” Id. at 4. The Plaintiffs dispute Mr. Kendrick’s contention that
Mr. Hamlyn’s knowledge of why the donors reduced or stopped their donations is
based on hearsay, and contend instead that his knowledge is based on a logical
inference from circumstantial evidence. Id. at 5-7. The Plaintiffs also contend that
Mr. Hamlyn’s comparative analysis of HWH’s revenue is based on publicly available
financial data, allowing him to test HWH’s fundraising after Mr. Kendrick’s allegedly
defamatory comments. Id. at 7-9. Finally, the Plaintiffs focus on the impact Mr.
Kendrick’s comments had on HWH’s ability to raise funds in the Boston area. Id. at
9-11.
II.

GEOFFREY SCOTT HAMLYN’S QUALIFICATIONS AND OPINIONS
A.

Qualifications

In his deposition, Mr. Hamlyn clarified that he is acting as an expert for HWH only, not for
Mr. Geilenfeld. Pls.’ Opp’n Attach. 5 Excerpts of Videotaped Dep. of Geoffrey S. Hamlyn 9:2-12 (ECF
No. 183) (Mar. 18, 2014) (Hamlyn Dep. 1) (“I’m serving as an expert witness for the corporation of
Hearts with Haiti and the financial damages that we’ve suffered”).
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Mr. Hamlyn graduated magna cum laude from The University of Texas at
Austin in 2006 with a bachelor’s degree in music and from The Juilliard School in
2008 as a master of music, specifically in viola performance. Def.’s Mot. to Seal
Attach. 4 at 10 (ECF No. 151) (Hamlyn Curriculum Vitae).
Mr. Hamlyn’s practical experience in the fundraising world began in 2008-09
while studying at The Julliard School. Id. He worked as a paid intern in the field of
arts administration. Id. In 2010, Mr. Hamlyn worked as a paid intern for Changing
Our World, Inc. in fundraising. Id. His curriculum vitae (CV) states that he gained
“fundraising and client interaction experience through engagements including
Abilities!, The National Peace Corps Association, and The Global Fund to Fight AIDS,
TB, & Malaria.” Id. Also in 2010, he joined Cultures in Harmony as the Operations
Manager. Id. His CV describes “Cultures in Harmony” as “an international cultural
diplomacy 501c3 nonprofit” and states that he was involved in “oversight over
fundraising, grantwriting, international travel, concert planning, personnel,
budgeting, reporting, donor acknowledgement, & strategic planning.” Id. During the
same time, he worked for Changing Our World, Inc. as Associate Director,
Fundraising. Id. His CV describes “Changing Our World” as “a major international
philanthropic services consulting firm” and indicates that he was involved in “project
management, budget development, strategic planning, campaign development, donor
research, donor solicitation, case development, event management, contract
development, measurement and evaluation, the creation of marketing materials, and
general counsel.” Id.

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Finally, in 2011, he began working as the Executive Director of HWH, which
his CV describes as “a 501c3 nonprofit with a mission to support street children, the
disabled, and the disadvantaged in Haiti.” Id. His CV indicates that as Executive
Director, he has “oversight over operations including, but not limited to fiscal
management, board governance, fundraising, strategic planning, administration,
donor management, marketing, media, personnel, reporting, and international
relations.” Id.
In February 2011, Mr. Hamlyn published a paper entitled, “Arts Fundraising
in a Tough Economy” in FLiP. Id.
B.

Opinions

In the expert designation, Mr. Hamlyn states he has been designated “to offer
opinion testimony in this matter regarding Plaintiffs’ damages.” Pls.’ Opp’n Attach.
4 Decl. of Geoffrey Hamlyn at 1 (ECF No. 183) (Hamlyn Decl.). There are two major
components to Mr. Hamlyn’s expert opinion.

First, he undertakes a statistical

analysis of HWH’s fundraising from 2009 through 2011 and compares HWH’s results
with the fundraising results of 29 other Haiti-nonprofits. Id. at 1-6. Using January
2011 as the month in which Mr. Kendrick began communicating with HWH’s donors,
id. at 1-2, Mr. Hamlyn states that, based on other Haiti-nonprofits, HWH experienced
$1,181,127 in lost revenue for 2011. Id. at 4. In addition, after gathering “the
majority of the surveyed nonprofits’ financial information for fiscal and calendar
years 2012,” id. at 5, Mr. Hamlyn states that HWH experienced $1,259,487 in lost
revenue for 2012. Id. at 6.

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Next, Mr. Hamlyn focuses on a “demonstrative example,” using contributions
to HWH from Boston-area donors. Id. at 6-7. He states that in 2010, Boston-area
donors contributed $497,930 to HWH and approximately $250,000 was raised by The
Cotting School and its surrounding community. Id. at 7. Noting that Mr. Kendrick
had disseminated his allegations of child abuse to those within The Cotting School
community, he opined that many in that community “distance[d] themselves from
and end[ed] their relationships with HWH, SJF2 and Michael Geilenfeld.” Id. Mr.
Hamlyn indicates that in 2010, Boston-area donors contributed $497,930 to HWH; in
2011, the figure fell to $76,647; and, in 2012, to $7,301. Id.
In addition to his designation, Mr. Hamlyn prepared a report entitled, “Report
on Relative Financial Position and Losses.” Def.’s Mot. to Seal Attach. 4 (Report on
Relative Financial Position and Losses). In that report, Mr. Hamlyn concludes that
“beginning in 2011, attacks by Paul Kendrick, Freeport, Maine, making public claims
of child abuse in the homes of the SJF, have caused precipitous declines in overall
revenues, with a particular dearth of unrestricted support for the operations of the
ministry.” Id. at 1. Mr. Hamlyn also states in his report that the declines in HWH’s
fundraising occurred “[a]s a result of concerns over Kendrick’s allegations.” Id. at 2.
He notes that two of HWH’s Board Members—Fr. John Unni and Kay O’Halloran—
resigned because of Mr. Kendrick’s allegations. Id. at 4.

SJF refers to St. Joseph Family of Haiti, the parent of a network of nonprofit institutions,
including St. Joseph’s Home for Boys. See Order Denying Def.’s Mot. for Partial Summ. J. at 4 (ECF
No. 237).
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III.

DISCUSSION
A.

Legal Standard

Federal Rule of Evidence 702 governs the admissibility of expert testimony.
Rule 702 states:
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 on
sufficient facts or data; (c) the testimony is the product of reliable
principles and methods; and (d) the expert has reliably applied the
principles and methods to the facts of the case.
FED. R. EVID. 702. In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579
(1993), the Supreme Court designated trial judges as gatekeepers responsible for
determining whether the requirements of Federal Rule of Evidence 702 are met in
any given case.3 Id. at 589 n.7. “‘A judge exercising the gatekeeper role must evaluate
whether the challenged expert testimony is based on reliable scientific principles and
methodologies in order to ensure that expert opinions are not ‘connected to existing
data only by the ipse dixit of the expert.’’” Kirouac v. Donahoe, No. 2:11-cv-00423JAW, 2013 U.S. Dist. LEXIS 6331, at *5 (D. Me. Jan. 16, 2013) (quoting Knowlton v.
Bankers Life & Cas. Co., No. 1:09-cv-00334-MJK, 2012 U.S. Dist. LEXIS 1365, at *23 (D. Me. Jan. 6, 2012) (quoting Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997))).

The Daubert Court set out four non-exclusive factors that a trial judge may consider in
determining the reliability of expert testimony. See Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137,
149-50 (1999) (listing the four factors). However, the Supreme Court subsequently emphasized that
the key word is “may.” The Supreme Court has held that “whether Daubert’s specific factors are, or
are not, reasonable measures of reliability in a particular case is a matter that the law grants the trial
judge broad latitude to determine.” Id. at 153.
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However, “[w]hen the ‘adequacy of the foundation for the expert testimony is at issue,
the law favors vigorous cross-examination over exclusion.’” Id. (quoting Zuckerman
v. Coastal Camps, Inc., 716 F. Supp. 2d 23, 28 (D. Me. 2010)); see also Daubert, 509
U.S. at 596 (“Vigorous cross-examination, presentation of contrary evidence, and
careful instruction on the burden of proof are the traditional and appropriate means
of attacking shaky but admissible evidence”); Ruiz-Troche v. Pepsi Cola of P.R.
Bottling Co., 161 F.3d 77, 85 (1st Cir. 1998) (same).
B.

Qualifications

Under Federal Rule of Evidence 702, a person may qualify as an expert “by
knowledge, skill, experience, training, or education.” FED. R. EVID. 702. Turning first
to Mr. Hamlyn’s education, Mr. Kendrick observes in his motion that neither of Mr.
Hamlyn’s formal academic degrees relates to financial or statistical analysis. Def.’s
Mot. at 14. In his deposition, Mr. Hamlyn testified that he studied statistics through
a distance learning course at the University of California at Los Angeles in the last
two quarters of 2013. Hamlyn Dep. 1 10:13-11:8. With only this distance learning
course in his field of expertise, Mr. Hamlyn’s formal educational background would
raise questions about whether he qualifies as an expert in financial or statistical
analysis.
The Court turns to whether he qualifies as an expert based on his “knowledge,
skill, experience, [or] training.” FED. R. EVID. 702. The First Circuit has written that
“[t]he test is whether, under the totality of the circumstances, the witness can be said
to be qualified as an expert in a particular field through any one or more of the five

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bases enumerated in Rule 702—knowledge, skill, experience, training, or education.”
Santos v. Posadas De P.R. Assocs., Inc., 452 F.3d 59, 64 (1st Cir. 2006). In other
words, “experts come in various shapes and sizes; there is no mechanical checklist for
measuring whether an expert is qualified to offer opinion evidence in a particular
field.” Id. at 63.
Here, the evidence in the record of Mr. Hamlyn’s on-the-job training in the field
of statistical and financial analysis is thin. The record lists Mr. Hamlyn’s past
employment and it may be that he has gained sufficient experience based on his past
and current employment to perform this analysis and to testify as an expert. But the
Court cannot tell based on this limited record whether Mr. Hamlyn has ever
performed this type of analysis previously, under what circumstances, whether his
prior analyses were ever peer-tested, and the purposes for his earlier analyses. With
this said, the Court observes that most of Mr. Hamlyn’s analysis is a matter of
common sense: (1) isolating comparable charities; (2) analyzing their fundraising
success in comparable periods; and (3) comparing an average of their returns against
HWH’s returns. It is possible that Mr. Hamlyn’s past and current employers required
him to perform this type of analysis in order to measure their fundraising success
against comparable nonprofits. Furthermore, with the exception of his standard
deviation analysis, none of this seems too esoteric.4

The Court wonders whether Mr. Hamlyn’s distance learning course qualifies him to perform a
standard deviation analysis and is concerned that this part of his opinion may make his conclusions
seem more reliable than they actually are. Using standard deviation analysis, he concludes that the
“confidence interval at 95% was +/- 24.05%, +/- 19%, and +/- 56% for the mean percentage change
during the periods of 2010-2012, 2010-2011, and 2009-2012, respectively.” Hamlyn Decl. at 6. Mr.
Hamlyn explains that this means that “in the time periods evaluated HWH’s percentage change was
not in line with the percent change of the broader market sector of Haiti nonprofits.” Id.
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Based on this record, the Court is not prepared to exclude or include Mr.
Hamlyn as a financial and statistical expert. Before he testifies, the Court will
require the Plaintiffs to present evidence out of the hearing of the jury as to Mr.
Hamlyn’s work or experience qualifications that allow him to present the type of
statistical and financial analysis for which he has been proffered.
C.

Opinions

Assuming the Plaintiffs are able to demonstrate that Mr. Hamlyn is an expert,
the Court has no compunctions about allowing him to testify to the core findings in
his statistical and financial analysis.5 The primary area of disagreement seems to
focus on the extent to which Mr. Hamlyn should be allowed to opine as to the causes
for HWH’s fall-off of donations. Here, the Plaintiffs’ and Mr. Kendrick’s arguments
pass like ships in the night.
The Plaintiffs urge the Court to conclude that Mr. Hamlyn’s opinions about
causation are permissible inferences based on circumstantial evidence: (1) in 2010,
the year before Mr. Kendrick’s campaign, HWH received nearly $2,000,000 in
contributions; (2) in 2011 and 2012, after Mr. Kendrick began his campaign, HWH
received around $500,000 each year; (3) Mr. Kendrick directly emailed HWH’s donors
with his allegations about Mr. Geilenfeld’s alleged child sexual abuse; (4) those
donors reduced or stopped their gifts; and (5) the reduction in giving is related to Mr.
Kendrick’s campaign. Pls.’ Opp’n at 6-7; Report on Relative Financial Position and

The Court is not convinced that Mr. Kendrick’s quarrels with Mr. Hamlyn’s methodology and
scientific validity require exclusion. The Court has already noted that the Supreme Court in Daubert
preferred cross-examination, presentation of contrary evidence, and instructions on burden of proof
over exclusion. Daubert, 509 U.S. at 596.
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Losses at 2-6. The Court agrees with the Plaintiffs that the jury would be entitled to
make such an inference, especially because Mr. Kendrick himself has apparently
admitted that he intended to affect donations to HWH by emailing these allegations
to potential donors. See Pls.’ Opp’n at 10 & n.5. But the question here is the extent
to which Mr. Hamlyn, testifying as an expert, should be allowed to tell the jury that
they should draw such an inference. More specifically, the issue is whether Mr.
Hamlyn will be allowed to testify as to what donors told him about why they did or
did not give.
Mr. Kendrick objects to Mr. Hamlyn telling the jury about the “subjective
motivations of donors.” Def.’s Mot. at 2. To be clear, Mr. Kendrick does not object to
this testimony if properly presented by a donor and Mr. Kendrick acknowledges that
at trial, the Plaintiffs could call as witnesses individuals who elected not to make
contributions because of Mr. Kendrick’s allegations. Id. at 3; see Armenian Assembly
of Am., Inc. v. Cafesjian, 746 F. Supp. 2d 55, 67 (D.D.C. 2010) (“[A] charitable
organization could recover damages for lost contributions by presenting evidence that
particular contributors who might otherwise have made contributions were unwilling
to do as a result of a defendant’s conduct”); Hous. Works, Inc. v. Turner, 00 Civ. 1122
(LAK)(JCF), 2004 U.S. Dist. LEXIS 18909, at *120 (S.D.N.Y. Sept. 15, 2004) (“[T]he
plaintiff has not submitted a statement from even a single funder confirming that he
or she decided to withhold donations because of the City’s contract dispute with
Housing Works”).

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The problem relates to the facts and opinions underlying Mr. Hamlyn’s opinion
and the extent to which Mr. Hamlyn should be allowed to testify to them. See FED.
R. EVID. 703. Mr. Hamlyn’s testimony about what an individual donor(s) told him as
to his or her motivations behind reducing or stopping his or her contributions would
be hearsay. These out-of-court statements would be for their truth and do not fall
into any obvious exceptions. FED. R. EVID. 801, 803-04. It is true that experts may
be allowed to “rely on those kinds of facts or data in forming an opinion . . . [that]
need not be admissible for the opinion to be admitted.”

FED. R. EVID. 703.

Furthermore, the proponent of the opinion is allowed to disclose the facts or data
underlying the opinion “only if their probative value in helping the jury evaluate the
opinion substantially outweighs their prejudicial effect.” Id. A classic example is a
physician’s testimony about the reports of other medical practitioners in forming
medical opinions.6 Manocchio v. Moran, 919 F.2d 770, 780 (1st Cir. 1990) (“Medical
examiners are physicians, and physicians commonly base their opinions on tests and
examinations performed by other physicians; for example, the reading of an x-ray by
a radiologist”). The First Circuit imposes the obligation on the trial judge to make a
preliminary determination as to the admissibility of the underlying facts. See United
States v. Corey, 207 F.3d 84, 88 (1st Cir. 2000).
Two contrasting examples suffice. In his opinion, Mr. Hamlyn mentions that
The Cotting School and its community significantly reduced their contributions to
HWH after receiving Mr. Kendrick’s emails. Hamlyn Decl. at 7. If the Plaintiffs

This is a civil action and does not present any Crawford issues. See Crawford v. United States,
541 U.S. 36 (2004); United States v. Cameron, 699 F.3d 621 (1st Cir. 2012).
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present trial testimony from someone from The Cotting School to establish an
evidentiary foundation for Mr. Hamlyn’s opinion, then Mr. Hamlyn would have a
right to assume the accuracy of that testimony in formulating his opinions. See
DaSilva v. Am. Brands, Inc., 845 F.2d 356, 360 (1st Cir. 1988) (“Federal Rules of
Evidence 702 and 703 . . . allow an expert to present scientific or technical testimony
in the form of opinion based on facts or data perceived or made known to the expert
before or at trial”).
The contrast is Father John Unni. The causation issue as to whether Father
Unni’s actions were related to Mr. Kendrick’s allegations is at least convoluted.
Father Unni was a member of HWH’s board of directors and a person able to influence
other donors, something Mr. Hamlyn calls “reach extenders.” Report on Relative
Financial Position and Losses at 4. In his report, Mr. Hamlyn states that “[i]ssues
surrounding the allegations and HWH’s response strategies have directly contributed
to the loss of valuable reach extenders and donors including, but not limited to, Fr.
John Unni.” Id. Mr. Hamlyn also notes that Father Unni resigned from the HWH
Board “because of Paul Kendrick’s allegations.” Id.
However, in his deposition, Mr. Hamlyn described a more complicated
sequence of events. Mr. Hamlyn testified that Mr. Kendrick contacted Father Unni
and because of those allegations, Father Unni met with one of the alleged victims.
Def.’s Mot. to Seal Attach. 3 Excerpts of Videotaped Dep. of Geoffrey S. Hamlyn 42:1143:6 (ECF No. 151) (Mar. 18, 2014). Mr. Hamlyn also acknowledged that Father Unni
then told the members of the HWH Board that he found the victim’s account of abuse

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to be credible, and subsequently, Father Unni resigned because he was concerned
about the allegations and because he wanted the HWH Board to conduct an
investigation. Id. 44:8-23.
Based on this testimony, Father Unni’s actions with HWH were linked to three
factors: (1) Mr. Kendrick’s allegations; (2) his meeting with one of the alleged victims
and his conclusion that the victim’s description was credible; and (3) the HWH
Board’s response. Whether Father Unni’s actions can be said to be caused by Mr.
Kendrick’s allegations alone is, based on the record, questionable.

Despite the

potential complexity of why an individual donor does or does not give, Mr. Hamlyn
acknowledged that he put all donors in Massachusetts in the same category,
presumably including people like Father Unni. Id. 53:2-25. Under Federal Rule of
Evidence 703, especially in light of the murky evidence of Father Unni’s motivations,
the Court is doubtful that Mr. Hamlyn would be allowed to testify as to what Father
Unni told him about his reasons for disassociating himself from HWH. This same
logic applies with equal force to other donors. Why people do and do not give money
is often complicated and the Court is not convinced that, even as an expert, Mr.
Hamlyn should be allowed to simplify those motivations.
The Court is unclear as to how much of Mr. Hamlyn’s proposed testimony
would meet the standards for admissibility under Federal Rule of Evidence 703, and
whether the Plaintiffs intend to present evidence at trial from donors that were
deterred from making donations to HWH because of Mr. Kendrick’s allegations—as
opposed to the donor’s individual circumstances, his or her investigation into the

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allegations, his or her dissatisfaction with HWH’s response, or a myriad of other
reasons. The record here is not clear and detailed enough to allow the Court to arrive
at a definitive conclusion about the admissibility of Mr. Hamlyn’s expert testimony
as designated. Having set forth some general principles, the Court anticipates that
before Mr. Hamlyn testifies, the parties will clarify the scope of his testimony outside
the presence of the jury.
IV.

CONCLUSION
The Court DISMISSES without prejudice Defendant’s Motion in Limine to

Exclude Opinion Testimony of Mr. Hamlyn (ECF No. 152).
SO ORDERED.
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
CHIEF UNITED STATES DISTRICT JUDGE
Dated this 24th day of September, 2014

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