Walters et al v. Flint et al

Filing 456

OPINION AND ORDER granting in part and denying in part 341 Motion to Exclude Testimony and Report of Dr. Mira Krishnan. Signed by District Judge Judith E. Levy. (WBar)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
In re Flint Water Cases

Judith E. Levy
United States District Judge

__________________________________/
This Order Relates To:
Bellwether I Cases
Case No. 17-10164
__________________________________/
OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANTS VEOLIA NORTH AMERICA, LLC, VEOLIA
NORTH AMERICA, INC., AND VEOLIA WATER NORTH
AMERICA OPERATING SERVICES, LLC’S MOTION TO
EXCLUDE THE TESTIMONY AND REPORT OF DR. MIRA
KRISHNAN [341]
This opinion is the third in a series addressing the admissibility of
the testimony and reports of eight experts retained by Plaintiffs in
anticipation of the first bellwether trial, currently set to begin on
February 15, 2022. Defendants argue that none of these experts can meet
the standards set by Federal Rule of Evidence 702 and Daubert v. Merrell
Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

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Currently before the Court is the motion by Veolia North America,
LLC, Veolia North America, Inc., and Veolia Water North America
Operating Services, LLC (collectively “VNA”) to exclude the testimony
and report of Dr. Mira Krishnan (ECF No. 341.) The LAN and LAD
Defendants join VNA’s motion. (ECF No. 344.) For the reasons set forth
below, VNA’s motion to exclude is GRANTED IN PART and DENIED IN
PART.
I.

Background

Dr. Mira Krishnan is a licensed clinical neuropsychologist with
advanced degrees in nuclear engineering and clinical psychology. (ECF
No. 366-2.) She works as a clinical assistant professor in the Department
of Psychiatry at Michigan State University, and also runs a small
business which provides neuropsychological evaluations, treatment, and
consulting services. Id. Her qualifications as an expert are not in dispute.
Dr. Krishnan is Plaintiffs’ expert on the element of injury. She was
retained to conduct a full neurocognitive evaluation of each of the four
bellwether Plaintiffs. Dr. Krishnan examined each child, interviewed one
or both parents, and conducted a battery of standardized tests to measure
IQ, academic progress, and behavioral functioning. (ECF No. 330-55, No.
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330-56, No. 330-57, No. 330-58.) Dr. Krishnan testified that she uses the
same tests in her personal clinical practice. (ECF No. 428, PageID.3229732298.) To write her reports in this case, Dr. Krishan also reviewed each
Plaintiff’s medical and academic records and read the deposition
testimony of their parents. Id.
Dr. Krishnan’s observations and conclusions for each Plaintiff are
summarized below.
A. D.W.
D.W. struggles to focus on her work at school, and sometimes
exhibits defiant, oppositional, or disrespectful behaviors. (ECF No. 33058,

PageID.15748.)

Standardized

testing

revealed

inconsistent

performance in tasks involving attention and cognitive efficiency. Id.
Moreover, testing showed a substantial visual problem-solving deficit as
compared to her verbal problem-solving skills. Id. Such deficiencies are
often correlated with social problems, and D.W.’s parents report
that she has some social difficulties. Id. Because D.W.’s symptoms
resemble, but are not entirely consistent with, nonverbal learning
disorder and attention deficit hyperactivity disorder (“ADHD”), Dr.

3

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Krishnan ultimately diagnosed D.W. with mild neurocognitive disorder.
(Id. at PageId.15748.)
Dr. Krishnan recommends that D.W. undergo complete testing to
evaluate the need for a 504 plan.1 Id. She further indicates that because
of her low visual reasoning index, D.W. may have trouble obtaining a
college degree. Id. Finally, she estimates that due to her mild
neurocognitive disorder, D.W.’s risk of high-school dropout is about 15%,
as compared to 5% in the general population; for similar reasons, Dr.
Krishnan estimates that her likelihood of dropping out in college is 2550%. As a result, Dr. Krishan concludes that there is a substantial risk
that D.W. will have to accept work below her potential. Id.
B. R.V.
R.V.’s family reported a history of behavioral problems, which was
in part reflected by difficulties at school. Most of R.V.’s standardized
testing came back normal or even above average. (ECF No. 330-57,
PageID.15732.) She did show signs of executive deficits, however. For
instance, while she performed well on memory testing, R.V.’s

Children who have a disability under Section 504 of the Rehabilitation Act (29 U.S.C. 794) are
entitled to a ‘504-plan’ providing them with appropriate accommodations, to ensure that their access
to education is not impeded.
1

4

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performance dropped severely when a distraction was introduced. Id.
Testing also revealed some deficits in aspects of visual reasoning. Id.
Dr. Krishnan concluded that any emotional problems R.V. might
have were not clinically significant. (Id. at PageID.15734.) Nor did R.V.
exhibit signs of ADHD or depression, for which there is a family history.
Id. Instead, Dr. Krishnan concluded that the mild deficiencies captured
by testing were best explained by a diagnosis of mild neurocognitive
disorder. Id.
Dr. Krishnan notes that the visual reasoning deficits may develop
into a nonverbal learning disability as R.V. ages and is subjected to more
advanced academic tasks. Id. She therefore predicts that there is a 2550% likelihood R.V. will need tutoring or an individualized education
plan (“IEP”).2 Finally, Dr. Krishnan notes that R.V. is likely to graduate
from both high school and college, but that her cognitive deficits will
make it more challenging for her to complete college. Accordingly, there
is some risk that she will end up working below her potential. Id.

An IEP or Individual Education Program is a plan developed for children with special educational
needs, specifying the student’s goals and the methods to be used to obtain them. The Individuals with
Disabilities Education Act requires the writing and regular updating of IEPs for qualifying children.
See 34 C.F.R. §§300.320 et seq (setting forth IEP requirements).
2

5

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C. A.T.
Dr. Krishnan observed mild fidgeting and impulsivity during her
examination of A.T. (ECF No. 330-56, PageID.15721.) Standardized
testing revealed an unusual imbalance: A.T. performed well above grade
level on reading, and well below grade level on mathematics (more than
two grades below, Id. at PageID.15724). Tests also revealed some
deficiencies in higher-level attention and verbal reasoning. Id. Finally,
A.T. exhibited weaker than expected independence skills, social
withdrawal, and some mild aggression and mood problems. Id.
According to Dr. Krishnan, the discrepant test results for A.T. do
not suggest ADHD. Instead, they are better interpreted as indicative of
a mood disorder and a mild neurocognitive disorder. (Id. at
PageID.15723.)
Dr. Krishnan concludes that A.T. will need an IEP with special
education support to resolve her significant deficits in math. (Id. at
PageID.15724.) She expects that A.T.’s learning and attention problems
will increase the risk of negative outcomes but anticipates that A.T. will
be able to graduate from high school. Id. However, Dr. Krishnan

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estimates that it is 30-50% likely A.T. will not be able to complete college
training due to her learning and attention problems.
D. E.S.
E.S.’ parents report that E.S. has a great deal of hyperactivity.
(ECF No. 330-55, PageID.15707.) This was reflected in Dr. Krishnan’s
observations as well: during the interview and testing, E.S. often
required instructions to be repeated. (Id. at PageID.15709.) Overall
intellectual functioning was normal, with the exception of below-grade
level math skills. Id. E.S.’ performance on initial learning testing (i.e.,
short-term memory) was borderline impaired. Id. Throughout his testing,
E.S. was capable of sustained focus, but only when he experienced the
tests as demanding. This resulted in inconsistent test scores, with poor
performance on easier tasks and better performance on more difficult
ones. Id. E.S.’ hyperactivity was rated at 97% worse than his peers, and
his medical record includes at least one injury caused by impulsive
behavior. (Id. at PageId.15712.)
Dr. Krishnan diagnosed E.S. with ADHD. While E.S. does not
presently require an IEP, decrements in functioning often do not fully
present themselves until later in elementary school. Accordingly, Dr.
7

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Krishnan estimates that there is a 25-50% chance E.S. will require an
IEP in the future. There is a similar likelihood that E.S. will need
approximately one-hour of tutoring a day. (Id. at PageID.15713.) Dr.
Krishnan estimates a two- to three-fold increase in the likelihood that
E.S. will drop out of high school (a 10-15% probability) and a 25-50%
probability that he will drop out of college. Accordingly, there is a risk
E.S. will end up working below his potential. Id.
II.

Legal Standard

The admissibility of expert testimony is governed by Federal Rule
of Evidence 702, which sets forth three requirements: (1) the witness
must be qualified, (2) the testimony must be relevant, and (3) the
testimony must be reliable. Fed. R. Evid. 702; In re Scrap Metal Antitrust
Litig., 527 F.3d 517, 528–29 (6th Cir. 2008). As the Supreme Court
explained in Daubert, Rule 702 imposes a “gatekeeping” obligation on the
courts to ensure that scientific testimony “is not only relevant, but
reliable.” Daubert, 509 U.S. at 589; See also Kumho Tire Co., Ltd. v.
Carmichael, 526 U.S. 137, 147 (1999).
Daubert provides a non-exclusive list of factors courts may consider
when evaluating reliability: (1) whether the theory or technique at the
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basis of the opinion is testable or has been tested, (2) whether it has been
published and subjected to peer review, (3) what the known error rates
are, and (4) whether the theory or technique is generally accepted.
Daubert, 509 U.S. at 593; see also In re Scrap Metal, 527 F.3d at 529
(listing same factors). Not every factor needs to be present in every
instance, and courts may adapt them as appropriate for the facts of an
individual case. Kumho 526 U.S. at 150.
“Rejection of expert testimony is the exception, rather than the
rule.” United States v. LaVictor, 848 F.3d 428, 442 (6th Cir. 2017)
(quoting In re Scrap Metal, 527 F.3d at 529–30)). Nevertheless, the
burden is on Plaintiffs to show by a “preponderance of proof” that the
proffered expert meets the standards of Rule 702 as interpreted by
Daubert. Pride v. BIC Corp., 218 F.3d 566, 578 (6th Cir. 2000) (quoting
Daubert, 509 U.S. at 592).
III. Analysis
According to VNA, none of Dr. Krishnan’s opinions are admissible.
VNA objects to all of Dr. Krishnan’s diagnoses because, in its view, Dr.
Krishnan did not appropriately apply the DSM-V criteria. (ECF No. 3305, PageID.14337-14351.) In addition, VNA argues that Dr. Krishnan’s
9

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predictions regarding the likelihood Plaintiffs will graduate from high
school or college are too speculative to be admissible.
Dr. Krishan’s diagnoses are plainly admissible. However, her
predictive opinions are partly speculative and will therefore be limited as
set forth below.
A. Reliability of Diagnoses
VNA argues that all of Dr. Krishnan’s diagnoses must be excluded
because (1) she only reached them to help Plaintiffs find a diagnostic
“hook” for their lawsuit, (2) she recanted them during her deposition, and
(3) she failed in every case to follow the objective guidelines set forth by
the DSM-V. None of these arguments are persuasive.
Contrary to VNA’s assertions, Dr. Krishnan did not “implicitly
acknowledge[]” (ECF No. 330-5, PageID.14341) that she only diagnosed
these Plaintiffs with a disorder to provide them with a hook for this
lawsuit. VNA’s argument rests on a serious mischaracterization of Dr.
Krishnan’s testimony. VNA claims that Dr. Krishnan “implicitly
acknowledged that her job was to find a diagnostic hook to support
Plaintiffs’ claims, observing that ‘people don’t file lawsuits if they don’t

10

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think they were injured’.” (Id. at PageID.14344.) But that is a soundbite
taken from the following testimony:
In general, a bare—a limitation with neuropsychology is that we
don’t evaluate people who don’t think that they have problems very
often. People don’t file lawsuits if they don’t think that they were
injured, people don’t come to clinical attention if they don’t think
that they have a problem either. And so, in general,
neuropsychologists use a variety of ways of estimating the
likelihood of decline from expected functioning.
(ECF No. 427, PageID.32114.) Nothing here as much as suggests that Dr.
Krishnan acted improperly.
VNA’s frequent claims that Dr. Krishnan “pivoted” from her initial
diagnoses, only to eventually insist “that the correct diagnosis was not in
the DSM at all,” are similarly baseless. (ECF No. 330-5, PageID.14341.)
When VNA’s counsel pressed her on the possible weakness in her
diagnoses, Dr. Krishnan testified that an alternative diagnosis,
“neurodevelopmental disorder,” would also have been appropriate for
some of the Plaintiffs. She admits that “it might have been better to use
that diagnostic code.” (ECF No. 427, PageID.32109.) But context matters
here, too. In the very next sentence, Dr. Krishnan clarifies: “but the
meaning [of both diagnoses] is the same in this case.” (Id.) And when she

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is asked whether she meant to recant her earlier diagnosis, she says that
she did not:
Q: So are you now saying that your diagnosis…is mild neuro—or
mild neurodevelopmental disorder?
A: I never said that.
Q: What is it?
A: I—so, it can be diagnosed…using either the code that I provided
in my report, or neurodevelopmental disorder…And the two are
used interchangeably in my experience in this kind of situation.
(Id. at PageID.32118-32119.) Dr. Krishnan’s testimony speaks for itself.3
VNA next challenges Dr. Krishnan’s application of the DSM-V
criteria. According to VNA, Dr. Krishnan should not have diagnosed any
of the Plaintiffs with ‘mild neurocognitive disorder,’ because the DSM-V
symptoms include neurocognitive decline, which VNA believes was not
present here. VNA also opines that A.T.’s emotional problems are not
clinically significant (ECF No. 330-5, PageID.14347), and that Dr.

VNA also points to testimony showing that Dr. Krishnan considered the diagnostic
guides included in the ICD-10 (the 10th edition of the International Statistical
Classification of Diseases and Related Health Problems). None of that testimony
suggests that she now believes her earlier diagnoses to be incorrect. As before, Dr.
Krishnan simply explains what other diagnostic classifications could also have fit.
3

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Krishnan based E.S.’ ADHD diagnosis on insufficient evidence (Id. at
PageID.14348-14349.)4
Neither Daubert nor Rule 702 requires courts to scrutinize the
conclusions of experts for the kinds of flaws VNA raises. See, e.g.,
Daubert, 509 U.S. at 595 (the court’s “focus, of course, must be solely on
principles and methodology, not on the conclusions”); In re Scrap Metal,
527 F.3d at 529; United States v. Bonds, 12 F.3d 540, 556 (6th Cir. 1993).
Nor would this be a viable way of exercising the gatekeeping function
envisioned in Daubert. Judges are not psychiatrists, and the “DSM-V is
not a cookbook.” State v. Charada T., 106 N.Y.S.3d 725, at *20 (N.Y. Sup.
Ct. 2018).
Dr. Krishnan’s work easily meets the standards set forth by
Daubert and Rule 702. Daubert requires only that an expert “employ in
the courtroom the same level of intellectual rigor that characterizes the
practice of an expert in the relevant field.” Best v. Lowe’s Home Ctr’s, Inc.,
563 F.3d 171, 181 (6th Cir. 2009) (quoting Kumho Tire, 526 U.S. at 152.)

VNA also cites to its own expert, who disagrees with Dr. Krishnan. But it is up to
a jury to decide which expert is more credible Phillips v. Cohen, 400 F.3d 388, 399
(6th Cir. 2005) (citing Cadmus v. Aetna Casualty and Surety Co., 1996 WL 652796
(6th Cir. Nov. 7, 1996)).
4

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Dr. Krishnan used standard clinical practice to evaluate these Plaintiffs.
(ECF No. 428, PageID.32297-32298.) That included a series of widely
accepted standardized tests, thorough interviews, and a review of
relevant records. Such methods are testable, cf. Daubert, 509 U.S. at 593,
because any other clinician could run the same standardized tests,
conduct the same parent interviews, and review the same records. It is
based on standards that are not only published and peer-reviewed, but
almost universally accepted to be reliable. See, e.g., Johnson v. Comm’r
of Soc. Sec., No. 1:20-CV-01505, 2021 WL 4463924 at *4, n5 (N.D. Oh.,
Sept. 13, 2021) (Wechsler Intelligence Scale the “traditional gold
standard” in intellectual assessment) (citing Benjamin Sadock & Virginia
Sadock & Pedro Ruiz, Kaplan & Sadock’s Comprehensive Textbook of
Psychiatry, Chap. 7 (10th Ed., 2014)); United States v. Montgomery, 2014
WL 1516147 at *26 (W.D. Tenn. 2014) (same). Nor is there any indication
that Dr. Krishnan’s work is unusually prone to error. Accordingly, all
Daubert factors weigh in favor of admitting Dr. Krishnan’s testimony.
Daubert, 509 U.S. at 593; In re Scrap Metal, 527 F.3d at 529 (listing
testability, peer-review, rate of error, and general acceptance as factors
to consider).
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This is not to say that so long as a clinician uses reliable
methodology, she may testify to any diagnostic conclusion. “A court may
conclude that there is simply too great an analytical gap between the data
and the opinion proffered.” Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146
(1997) (citing Turpin v. Merrell Dow Pharmaceuticals, Inc., 959 F.3d
1349, 1360 (6th Cir. 1992)); See also Stephen v. Hamamoto, No. 00-00338,
2009 WL 10676989 (D. Hawai’i, March 20, 2009) (psychologist’s PTSD
diagnoses unreliable because they bore too little relationship to the
limited clinical information). But Dr. Krishnan’s conclusions are all
reasonable given the evidence.
Begin with the three mild neurocognitive disorder diagnoses. VNA
argues that they are unreliable because Dr. Krishnan did not find
evidence of neurocognitive decline, one of the symptoms listed in the
DSM-V for this diagnosis. But, as Dr. Krishnan explained in her
deposition, psychologists use “things like looking at the general
intellectual level as an estimation of where a child should be and
comparisons to other children who are like the child in question” to
estimate whether there has been “decline” from a baseline. (ECF No. 427,
PageID.32115.) Such estimations are appropriate for two reasons, Dr.
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Krishnan explains. First, there are generally no objective measures of
baseline functioning because psychologists “don’t evaluate people who
don’t think that they have problems.” (Id. at PageID.32114.) That is why
“in general, neuropsychologists use a variety of ways of estimating the
likelihood of decline from expected functioning.” (Id.) In children, the
primary way to do so is to use “age-corrected scaled scores—and
sometimes also gender-corrected…or grade-corrected scaled scores.” (Id.)
As

set

forth

above,

Dr.

Krishan

conducted

such

standard

neuropsychological tests on each Plaintiff, and those tests demonstrated
“modest impairment” compared to their expected functioning. (Id.)
Accordingly, Dr. Krishnan used reasonable measures to estimate
Plaintiffs’ ‘decline’ from their expected functioning.
Regarding A.T.’s mood disorder diagnosis, VNA objects that (1) Dr.
Krishnan did not identify behavioral impairments that could impact an
“important area of functioning,” and (2) the documented emotional
problems suffered by A.T. are not “clinically significant.” (ECF No. 3305, PageID.14347.) VNA concedes that there is some evidence of emotional
concerns. Id. at PageID.14346 (VNA’s brief, citing A.T.’s parent interview
and Dr. Krishnan’s observation that A.T. “presents with some social and
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mood problems”). It is clearly not appropriate for a court to determine
whether a particular symptom is sufficiently severe to be “clinically
significant.” And Dr. Krishnan identifies behavioral impairments that
are affecting A.T.’s school life, surely an “important area of functioning.”
To be sure, the problems Dr. Krishnan describes are milder than one
might expect given this diagnosis. But that is precisely the kind of
“factual weakness” in the expert’s conclusions that is not at issue in
Daubert evaluations. E.g., In re Scrap Metal, 526 F.3d at 529.
Finally, VNA’s position that there is too great an analytical gap
between E.S.’ test results (rating him 97% more hyperactive than his
peers) and his ADHD diagnosis is completely without merit. VNA’s
primary complaint is that E.S.’ parents’ responses to the BASC-3 test did
not support six or more of the common hyperactivity symptoms listed in
the DSM-V. (ECF No. 330-5, PageID.14348-14349.) But Dr. Krishnan
personally observed several of the behaviors listed, observations which
she could plainly consider while making her diagnosis. In any event,
there is no support for VNA’s checklist-approach to psychology, which is
explicitly rejected by the DSM-V itself. See American Psychiatric
Association, Diagnostic and Statistical Manual of Mental Disorders, (5th
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Ed. 2013) at 19 (“The symptoms contained in the respective diagnostic
criteria sets do not constitute comprehensive definitions of underlying
disorders, which encompass cognitive, emotional, behavioral, and
physiological processes that are far more complex than can be described
in these brief summaries.”).
For these reasons, Dr. Krishnan’s observations and diagnoses of all
four bellwether Plaintiffs meet the standards set forth by Daubert and
Rule 702.5
A. Reliability of Predictions
VNA next objects to the predictions Dr. Krishnan makes about the
educational future of each Plaintiff. Dr. Krishnan’s testimony and reports
include two types of predictions. First, Dr. Krishnan explains that some
of the Plaintiffs may need an IEP or tutoring services in the immediate
future. Second, Dr. Krishnan estimates the likelihood that each Plaintiff
will be able to graduate from high school, college, or an advanced degree

In the final paragraph of its brief, VNA claims that the unreliability of Dr.
Krishnan’s testimony also renders it irrelevant for purposes of Rule 702. Because Dr.
Krishnan’s methodology was not unreliable, this argument fails.
5

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program. The Court agrees that Dr. Krishnan’s testimony on the second
issue must be limited.
The parties do not address the first type of prediction. The Court
finds that those predictions are reliable because they are reasonable
inferences from the Plaintiffs’ test scores and are based on Dr. Krishnan’s
extensive clinical experience. Clinicians may rely on their professional
experience to offer an opinion. After all, it is their experience that sets
them apart as experts. See, e.g., Best, 563 F.3d at 181 (medical doctor
properly based differential diagnosis on his own experience); Dickenson
v. Cardiac and Thoracic Surgery of Eastern Tenn., 388 F.3d 976, 980-82
(6th Cir. 2004) (reversing exclusion of medical doctor’s opinions, noting
that “no one denies” that experts may draw conclusions based on
“extensive and specialized experience”) (collecting cases).
Dr. Krishnan’s estimates of the likelihood that each Plaintiff could
drop out of school are significantly further removed from the clinical data
she collected during her examinations. In support of her estimates, Dr.
Krishnan cites to a single study, which concerned the effect of severe
ADHD on the likelihood of high-school drop-out. Mats Fredriksen et al.,
Childhood and persistent ADHD symptoms associated with educational
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failure and long-term occupational disability in adult ADHD, 6 ADHD 2,
at 87-99 (2014). This study concluded that “childhood hyperactiveimpulsive symptoms and overall severity of childhood ADHD symptoms
were associated with high school dropout rates.” Id. at 87.
As VNA points out, the Fredriksen study does not speak to the
effect of mild neurocognitive disorder or mood disorder on drop-out rates.
It could therefore support only the predictions regarding Plaintiff E.S.
And even with respect to E.S., who was diagnosed with mild ADHD, Dr.
Krishnan does not explain why his expected educational outcomes are as
negative as those of the ADHD patients in the Fredriksen study.
For Plaintiffs A.T., R.V., and D.W., Dr. Krishnan’s conclusions are
supported exclusively by her clinical experience.6 But Dr. Krishnan
nowhere explains how she reached the percentages she provides in her
report. Indeed, in her deposition she often explains that she was “not able

VNA’s position that Dr. Krishnan may not rely on such experience at all is meritless.
Dickenson, 388 F.3d 976, 980-82 (6th Cir. 2004) (collecting cases). See also Seifert v.
Balink, 372 Wis.2d 525, 566 (2017) (“The case law teaches that Daubert’s role of
ensuring that the courtroom door remains closed to junk science is not served by
excluding medical expert testimony that is supported by extensive medical
experience. Such exclusion is rarely justified in cases involving medical experts.”)
(citing Dickenson, 388 F.3d at 980); Foreman v. Am. Road Lines, Inc., 623 F.Supp.2d
1327, 1334-35 (S.D. Ala. 2008) (psychologist properly relied on personal experience).
6

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to quantify” whether any plaintiff “has an increased risk of graduating
[sic] from high school or not.” (ECF No. 428, PageID.32212.)
Because Dr. Krishnan has extensive clinical experience treating
patients like Plaintiffs, she may explain at trial why she believes each
Plaintiff might have greater difficulty completing high school, college, or
an advanced degree than they would have had but for their injuries. In
that testimony, Dr. Krishnan may further elaborate upon the reasons
why patients with Plaintiffs’ diagnoses and symptoms may face
difficulties at school now and in the future. See Thompson v. Doane Pet
Care Co., 470 F.3d 1201, 1203 (6th Cir. 2006) (Rule 26 contemplates that
experts “will supplement, elaborate upon, [and] explain” the conclusions
in their reports at trial). Dr. Krishnan may also testify to the results of
the Fredriksen study, which is a peer-reviewed article in an academic
journal. United States v. Gissantaner, 990 F.3d 457, 468 (6th Cir. 2021)
(“Submission to peer-review generally suffices under Daubert”).
However, because Dr. Krishnan does not explain how her clinical
experience, the Fredriksen study, or any other academic work supports
the numerical percentages related to educational outcomes she offers, the
Plaintiffs cannot carry their burden of showing by a preponderance of the
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evidence that those estimates are based on a reliable methodology. Pride,
218 F.3d at 578 (quoting Daubert, 509 U.S. at 592) (explaining burden of
non-movant in Rule 702 motion). Dr. Krishnan’s numerical estimates
regarding the likelihood each Plaintiff will complete high school, college,
or an advanced degree are therefore inadmissible.
IV.

Conclusion

For the reasons set forth above, VNA’s motion to exclude Dr.
Krishnan’s opinions and testimony is GRANTED IN PART and DENIED
IN PART.
IT IS SO ORDERED.
Dated: December 6, 2021
Ann Arbor, Michigan

s/Judith E. Levy
JUDITH E. LEVY
United States District Judge

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on December 6, 2021.
s/William Barkholz
WILLIAM BARKHOLZ
Case Manager

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