Murphy et al v. Minnesota Department of Human Services et al

Filing 644

MEMORANDUM OPINION AND ORDER - Plaintiff's Motion to Exclude Expert Testimony of John Patterson (Doc. No. 488 ) is GRANTED. Defendant's Motion to Exclude Plaintiffs' Expert Testimony, Reports, and Opinions (Doc. No. 468 ) is DENIED.(Written Opinion) Signed by Judge Donovan W. Frank on 8/6/2019. (las)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Tenner Murphy, by his guardians
Kay and Richard Murphy; Marrie
Bottelson; Dionne Swanson; and
on behalf of others similarly situated,
Plaintiffs,

Civil No. 16-2623 (DWF/BRT)

MEMORANDUM
OPINION AND ORDER

v.
Pam Wheelock1 in her capacity
as Acting Commissioner of The
Minnesota Department of
Human Services,
Defendant.

Joseph W. Anthony, Esq., Peter McElligott, Esq., and Steven M. Pincus, Esq., Anthony
Ostlund Baer & Louwagie PA; Laura Farley, Esq., and Steven Andrew Smith, Esq.,
Nicholas Kaster PLLP; Barnett I. Rosenfeld, Esq., and Justin H. Perl, Esq., MidMinnesota Legal Aid; Eren Ernest Sutherland, Esq., Justin M. Page, Esq., and
Steven C. Schmidt, Esq., Mid-Minnesota Legal Aid, Minnesota Disability Law Center,
counsel for Plaintiffs.
Aaron Winter, Brandon L. Boese, Janine Wetzel Kimble, and Scott H. Ikeda, Assistant
Attorneys General, Minnesota Attorney General’s Office, counsel for Defendant.
Pari McGarraugh, Esq., and Samuel D. Orbovich, Esq., Fredrikson & Byron, counsel
for amicus ARRM.

1

The Court has substituted Pam Wheelock, Acting Commissioner of the Minnesota
Department of Human Resources, for Emily Johnson Piper. A public officer’s “successor
is automatically substituted as a party” and “[l]ater proceedings should be in the
substituted party’s name.” Fed. R. Civ. P. 25(D).  

INTRODUCTION
This matter is before the Court on Plaintiffs’ Motion to Exclude Expert Testimony
of John Patterson (Doc. No. 488), and Defendant’s Motion to Exclude Plaintiffs’ Expert
Testimony, Reports, and Opinions (Doc. No. 468). For the reasons set forth below, the
Court grants Plaintiffs’ motion, and denies Defendant’s motion.
BACKGROUND
The Court previously detailed the background of this case in its May 18, 2017
Memorandum Opinion and Order (Doc. No. 54), and the Court only briefly summarizes
the facts here.2 In short, Plaintiffs are individuals with disabilities and Medicaid
recipients who receive Home and Community Based Disability Waivers (“Disability
Waivers”) from the State of Minnesota under the direction of Defendant Pam Wheelock
(“Defendant”), Acting Commissioner of the Minnesota Department of Human Services
(“DHS”). Plaintiffs reside in Community Residential Setting (“CRS”) facilities—
otherwise known as corporate adult foster care—and wish to access various
individualized housing services available under the Disability Waivers to pursue more
integrated housing options. Plaintiffs assert that their current living situations isolate and
segregate them from their communities in violation of federal law. To access the services
they seek in a timely manner and with proper due process, Plaintiffs seek declaratory and

2

The Court directs readers to its May 18, 2017 Memorandum Opinion and Order
and otherwise assumes familiarity with the facts and law elaborated therein. See Murphy
by Murphy v. Minn. Dep’t of Human Servs., 260 F. Supp. 3d 1084 (D. Minn. 2017).
2

injunctive relief to reform Defendant’s administration of the Disability Waiver programs.
The Court supplements the relevant facts as needed, below.
Plaintiffs move to exclude the expert testimony of Defendant’s expert, John
Patterson (“Patterson”). (Doc. No. 488.) Patterson serves as Minnesota Housing’s
Director of Planning, Research, and Evaluation. (Doc. Nos. 491 (“Page Aff.”) ¶ 3; 491-1,
Ex. 2 (“Patterson Report”) at 6.) He holds a Bachelor of Arts in Economics from
Middlebury College, and a Master of Public Affairs from the Woodrow Wilson School of
Public and International Affairs at Princeton University. (Id. at 102.) He has over
twenty-five years of professional experience—eleven in his current capacity. (Id. at 101.)
His testimony and opinions relate to the availability of affordable housing in Minnesota.
(Page Aff. ¶ 2; Doc No. 491-1, Ex. 1 (“Expert Disclosure”) at 2.)
Defendants move to exclude the expert testimony, reports, and opinions of
Plaintiffs’ experts, David Michael Mank, Ph.D. (“Dr. Mank”), and Dennis F. Price
(“Price”). (Doc. No. 468.) Dr. Mank holds a Bachelor of Arts in Psychology and
English from Rockhurst College, a Master of Science in Special Education from Portland
State University, and a Doctor of Philosophy in Special Education and Rehabilitation
from University of Oregon. (Doc. Nos. 494 (“Winter Decl. Part 1”) ¶ 41; 498 (“Winter
Decl. Part 3”), Ex. 40 (“Dr. Mank Report”), Ex. A (“Dr. Mank Resume”) at 2.) Dr. Mank
worked for 5 years as a resident assistant in an Oregon Intermediate Care Facility for
people with intellectual and developmental disabilities. (Dr. Mank Report at 2.) He then
worked as a Research Assistant, and later, Associate Professor at the University of
Oregon on projects related to community living and integrated employment for people
3

with intellectual and developmental disabilities. (Id.) From 1996 to September 2016, Dr.
Mank was director of the Indiana Institute on Disability and Community at Indiana
University. (Id.) Mank’s testimony and opinions relate to the nature of segregation and
extent of choice in Corporate Foster Care (“CFC”) facilities versus individualized
housing options (“IHOs”) in Minnesota. (Id. at 1.)
Price holds a Bachelor of Arts in Psychology from Oakland University. (Doc.
Nos. 310 (“Schmidt Aff.”) ¶ 5; 310-1, Ex. 4 (“Price Report”) at 21.) He has worked for
over 40 years as a professional in the social services field. (Id. at 20.) For the past 30
years, he developed and oversaw the creation and continuous improvement of a variety of
alternative means of supporting individuals with disabilities in the community, including
housing. (Id. at 20-24.) Price’s professional experience includes oversight of the Dakota
County Housing and Resource Development Unit. (Id. at 22.) His opinions relate to:
(1) whether Minnesota’s Olmstead Plan is an effectively working plan ensuring that
individuals with disabilities who live in CFC facilities are provided with reasonable
choice and opportunity in their housing and appropriate assistance if they chose to move
to IHOs; (2) whether the policies and practices of DHS are providing individuals with
disabilities who live in CFC facilities with adequate choice and opportunity to reside in
individualized housing options; (3) whether Plaintiffs’ requested relief constitutes
reasonable modifications to DHS’s Disability Waiver service system that will assist
individuals with planning or, moving to, and living in individualized housing options that
are the most integrated settings appropriate to their needs; and (4) whether Plaintiffs’

4

requested relief fundamentally alters DHS’s Disability Waiver Service System. (Id. at
19.)
DISCUSSION
I.

Legal Standard
Before accepting the testimony of an expert witness, the trial court is charged with

the “gatekeeper” function of determining whether an opinion is both relevant and
reliable. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589-90 (1993); Aviva
Sports, Inc. v. Fingerhut Direct Mktg., Inc., 829 F. Supp. 2d 802, 820 (D. Minn. 2011).
The Eighth Circuit extended the Daubert holding to apply to non-scientific experts
qualified by their experience, education, skill, or expertise in their field. Kumho Tire
Co. v. Carmichael, 526 U.S. 137, 147 (1999). When the district court sits as a finder of
fact, “there is less need for the gatekeeper to keep the gate when the gatekeeper is
keeping the gate only for himself.”3 David E. Watson, P.C. v. U.S., 668 F.3d 1008, 1015
(8th Cir. 2012).
A duly qualified expert may testify if: (1) “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”; (2) “the testimony is based on sufficient facts or data”; (3) “the
testimony is the product of reliable principles and methods”; and (4) “the expert has
reliably applied the principles and methods to the facts of the case.” Fed. R. Evid. 702;
see also Lauzon v. Senco Prods., Inc., 270 F.3d 681, 686 (8th Cir. 2001). “Expert

3

Plaintiffs withdrew their demand for a jury trial in this matter on November 8,
2018. (Doc. No. 413.) Defendant did not object. (Doc. No. 414.)
5

testimony which does not relate to any issue in the case is not relevant, and ergo, nonhelpful.” Daubert, 509 U.S. at 591 (internal quotation marks and citation omitted).
Finally, expert testimony is appropriate when “it relates to issues that are beyond the ken
of people of ordinary experience.” U.S. v. Clapp, 46 F.3d 795, 802 (8th Cir.1995)
(internal quotation marks and citation omitted). “Where the subject matter is within the
knowledge or experience of laymen, expert testimony is superfluous.” Id.
In determining whether the proposed expert testimony is reliable, the Court can
consider: (1) whether the theory or technique can be and has been tested; (2) whether the
theory or technique has been subjected to peer review and publication; (3) the known rate
of potential error; and (4) whether the theory has been generally accepted. Id. at 593-94.
The purpose of these requirements “is to make certain that an expert, whether basing
testimony upon professional studies or personal experience, employs in the courtroom the
same level of intellectual rigor that characterizes the practice of an expert in the relevant
field.” Kuhmo Tire Co., 526 U.S. at 152.
In Kuhmo Tire, the Supreme Court determined, “the trial judge must have
considerable leeway in deciding in a particular case how to go about determining whether
particular expert testimony is reliable.” 526 U.S. at 152. In other words, a trial court
should consider the specific factors identified in Daubert where there are reasonable
measures of the reliability of expert testimony. Id. The objective of that requirement is
to ensure the reliability and relevancy of expert testimony. Id.
The Court also notes that “Rule 702 reflects an attempt to liberalize the rules
governing the admission of expert testimony,” and it favors admissibility over exclusion.
6

Lauzon, 270 F.3d at 686 (quoting Weisgram v. Marley Co., 169 F.3d 514, 523 (8th
Cir. 1999)). When examining an expert opinion, a court applies a general rule that “the
factual basis of an expert opinion goes to the credibility of the testimony, not the
admissibility, and it is up to the opposing party to examine the factual basis for the
opinion in cross-examination.” Bonner, 259 F.3d at 929-30 (quoting Hose v. Chicago
Nw. Transp. Co., 70 F.3d 968, 974 (8th Cir. 1995)). “[I]f the expert’s opinion is so
fundamentally unsupported that it can offer no assistance to the jury,” then it must be
excluded. Id. at 929-30.
A.

Plaintiffs’ Motion

Plaintiffs move to exclude the expert testimony of John Patterson. Patterson
intends to testify with respect to “issues related to the availability and affordability of
housing in Minnesota; the supply of low-income housing in Minnesota; [and] the
Minnesota Housing Finance Agency’s work to address issues related to low-income
housing in Minnesota. (Page Aff. ¶ 2, Expert Disclosure at 2.) Patterson’s report
consists of four documents: (1) Minnesota Housing: Statewide Analysis of Gaps in
Affordable Housing, dated March 2015; (2) Minnesota Housing Memorandum: Updated
Gaps Analysis, dated September 7, 2017; (3) a PowerPoint entitled, Minnesota Housing:
Key Trends in Housing, dated, January 2018; and (4) Minnesota Housing: The Loss of
Naturally Occurring Affordable Housing, dated May 2, 2018. (See Patterson Report at
6.) Patterson did not prepare the documents for this case; nor did he review case specific
facts prior to preparing his opinions in this matter. (Page Aff. ¶ 4, Doc. No. 491-1, Ex. 3
(“Patterson Dep.”) at 31-32.)
7

Plaintiffs argue that Patterson’s expert opinion and testimony should be stricken
because “it is not relevant to the issue presented in the case, and it is common knowledge
within the knowledge of the trier of fact.” (Doc. No. 490 (“Pl. Memo.”) at 6.)
Specifically, Plaintiffs argue that Patterson’s testimony is not relevant because this case is
not about affordable housing. (Id. at 7.) They contend that Patterson’s report does not
offer any opinions about the essential elements of their claims, whether Defendant has
fulfilled her statutory obligations with respect to those claims, or any opinion about
causation. (Id. at 8.)
Plaintiffs argue further that even if Patterson’s opinion is relevant, it should be
excluded because “it will not help the trier of fact understand the evidence or determine a
fact in issue.” (Id.) Plaintiffs contend that there is no question that there is a tight
housing market in parts of Minnesota, and that a deluge of recent media reports makes it
such that “people of ordinary experience are clearly aware that there is a tight housing
market in Minnesota.” (Id. at 10.) To this end, Plaintiffs contend that having Patterson
testify about “the obvious existence of a tight housing market would be superfluous and
unnecessary.” (Id.)
Defendant argues that Patterson’s testimony is both relevant and helpful. (Doc.
No. 547 (“Def. Opp.”) at 8-12.) Defendant contends that Plaintiffs actually do expect her
to provide affordable housing; therefore, Patterson’s testimony with respect to the
availability of affordable housing is relevant. (Id. 2-3.) She argues that Patterson’s
report directly addresses why people are unable to live in their preferred housing setting,
and that this is plainly relevant to the issue in this case as a “cause-in-fact of an
8

individuals’ failure to move not relating to any action of Defendant, but to the lack of an
adequate affordable housing supply.” (Id. at 9.) Defendant also argues that Patterson’s
opinions are beyond the scope of common sense, and disagrees that they are within the
knowledge or experience of lay people. (Id. at 10.) She contends that Patterson’s report
contains a number of facts and opinions that “go beyond the simple existence” of a tight
housing market, citing several statements laden with data and statistics that are outside of
“common knowledge.” (Id. at 10-12.)
The Court finds that opinions or testimony on the availability of affordable
housing in Minnesota will not “assist the trier of fact to understand the evidence or the
determine a fact in issue” in this case. Daubert, 509 U.S. at 591 (citing Fed. R. Evid.
702). Plaintiffs’ case alleges that Class members rely on Defendant to access home and
community-based Waiver services and that Defendant has failed to provide Class
members with Waiver services to allow them to live in the most integrated setting
appropriate to their needs. (See generally Doc. No. 33 (“Am. Compl.”).) Plaintiffs seek
declaratory and injunctive relief to reform Defendant’s administration of the Disability
Waiver programs. (Id. at 34-37.) Plaintiffs’ desired relief does not include a request that
Defendant actually provide housing.
Even if lack of affordable housing is one factor preventing an individual from
living in the most integrated setting appropriate to his or her needs, it has no bearing on
the unrelated issue of whether Defendant’s Waiver system prevents an individual from
living in the most integrated setting appropriate to his or her needs, nor does it have any
impact on Plaintiffs’ requested relief.
9

The District of Columbia Court of Appeals recently addressed a similar issue. See
Brown v. District of Columbia, Civ. No. 17-7152, 2019 WL 2985992 (D.C. Cir. July 5,
2019). There, plaintiffs alleged that class members remained in nursing facilities in
violation of the ADA and the Rehabilitation Act because defendant failed to provide
effective transition services. Id. at *1. They requested injunctive relief that included a
requirement to transfer a certain number of class members to the community each year.
Id. at *11 n.13. The court addressed defendant’s argument that its ability to transition
class members into the community was impacted by barriers outside of its control,
including lack of affordable housing. Id. at 11 n.13. The court found that the lack of
affordable housing had “no bearing” on multiple portions of plaintiffs’ requested relief,
and that lack of available housing alone would not resolve the litigation in defendant’s
favor. Id. Unlike Brown, Plaintiffs’ requested relief does not include a requirement to
transfer any number of class members to the community each year. Therefore, the
availably of affordable housing is of even lesser relevance here.
Even if the availability of affordable housing was relevant to Plaintiffs’ claims,
Patterson’s report contains no analysis about the barriers that peoples with disabilities
face in finding housing. (Patterson Dep. at 65-66.) Because Patterson’s opinions and
testimony “[do] not relate to any issue in the case, [it] is not relevant and, ergo, nonhelpful.” Daubert, 509 U.S. at 591. Accordingly, the Court grants Plaintiffs’ motion to
exclude Patterson’s expert opinions and testimony.4

4

Because the Court finds that Patterson’s opinions and testimony are not relevant,
the Court does not address whether they are common knowledge.
10

B.

Defendant’s Motion

Defendant moves to exclude the expert testimony, reports, and opinions of
Plaintiffs’ experts, Dr. David Michael Mank and Dennis F. Price. She alleges that their
opinions should be excluded because “they are not helpful to the factfinder; the experts
are not qualified; and they are not reliable.” (Doc. No. 471 (“Def. Memo.”) at 1.)
1.

Dr. David Michael Mank

Dr. Mank offers three opinions: (1) integrated settings must offer people with
disabilities the ability to make meaningful life choice and experience full community
participation; (2) CFC facilities are more segregated settings than IHOs because they are
likely to have characteristics that limit choice and community engagement; and, (3) IHOs
are more integrated settings than CFC facilities because they are likely to have
characteristics that promote choice and community engagement. (Dr. Mank Report
at 4- 22.) Dr. Mank’s opinions are based on review of related documents, interviews of
key informants, observations in CFC facilities and IHOs in Minnesota, and his personal
experience in the disability services field. (Id. at 1, 3-4.)
Defendant first argues that Dr. Mank’s opinions should be excluded because they
are not helpful. (Def. Memo. 11-12.) She contends that Dr. Mank started with a
conclusion because he relied on Plaintiffs’ counsel to determine what housing was a CFC
or an IHO. (Id.) She alleges that without any testimony about how those locations were
selected, or why they were categorized as CFCs or IHOs, Dr. Mank is unable to assist the
factfinder in making any determination about the general characteristics of CFCs or

11

IHOs.5 (Id. at 11.) Dr. Mank testified that he asked Plaintiffs’ counsel to see both CFC
facilities and IHO settings, but that he did not have any part in in the process of selecting
which ones he visited. (Winter Decl. Part 1 ¶ 40; Doc. No. 496 (“Winter Decl. Part 2”),
Ex. 39 (“Dr. Mank Dep.”) at 276-77.)6
If Dr. Mank’s opinions were based solely on his visits to CFC facilities and IHO
settings without context or experience to draw from, Defendant’s argument would be
more persuasive. Here, Dr. Mank opines on the characteristics of CFC facilities and
IHOs he visited in the context of his professional experience, published studies, and
interviews with key informants. (Dr. Mank Report at 1.) Whether or not he observed
every CFC facility or IHO in the state or relied on Plaintiffs’ counsel for a list of which to
target does not negate the overall usefulness of his opinions with respect to helping the
factfinder better understand issues in this case, namely, the general differences between
CFC facilities and IHOs. Defendant’s critique of Dr. Mank’s methodology may be
addressed on cross examination; however, the factual basis of his opinion goes to the

5

The Court observes that CFCs are statutorily defined. See Minn. Stat. § 245D.02,
Subd. 4d (“‘Corporate foster care’ means a child foster residence setting licensed
according to Minnesota Rules, parts 2960.3000 to 2960.3340, or an adult foster care
home licensed according to Minnesota Rules, parts 9555.5105 to 9555.6265, where the
license holder does not live in the home.”).
6

Dr. Mank subsequently filed a declaration stating that he “expressly asked
[Plaintiffs’ counsel] for a range of CFC facilities and IHOs to visit” and that “based on
[his] experience and expertise conducting such research, [he] believe[d] the data [he]
used was representative and reliable.” (Doc. 590 (“Dr. Mank Decl.”) ¶¶ 6-7.) Defendant
argues that the cited portions of Dr. Mank’s declaration should be stricken as untimely
and unfairly prejudicial. (Doc. No. 597 (“Def. Reply”) at 9.) at 2-4.) The Court agrees.
Accordingly, the Court does not consider the cited portions of Dr. Mank’s declaration in
its analysis.

12

credibility of the testimony, not its admissibility. Bonner, 259 F.3d at 929. The Court
resolves any doubts regarding the overall value of Price’s testimony in favor of its
admissibility. See Clark by Clark v. Hendrick, 150 F.3d 912, 915 (8th Cir. 1998) (noting
that “doubts regarding whether an expert’s testimony will be useful should generally be
resolved in favor of admissibility”).
Defendant next argues that Dr. Mank’s report, testimony, and opinions should be
excluded because he is not qualified to opine on a system or setting in which he has no
experience. (Def. Memo. at 14.) She contends that Dr. Mank lacks the requisite
experience because he has not: (1) administered a statewide or county disability waiver
system; (2) worked in an IHO or visited a CFC in Minnesota apart from his work in this
case; or (3) provided direct care to a disability waiver recipient. (Id.) She also argues
that his published works do not involve characteristics of CFCs or IHOs, that much of his
scholarly research relates to integrated employment as opposed to housing, and that he
did not consider or review Named Plaintiffs’ income, medical, case management, or
employment records to determine whether they are or were living in their most integrated
settings. (Id.)
Despite Defendant’s objections, the Court finds that Dr. Mank is qualified to opine
on this case. Dr. Mank has over 40 years of experience working in the disability services
field. (See generally Dr. Mank Resume.) His experience includes providing direct
support to individuals in both segregated and integrated settings, and work as a researcher
and educator on integration and full inclusion of people with disabilities. (Id.) He has
also served as an expert in several disability related lawsuits involving housing and
13

community integration. (Mank Report at 2-3.) The Court finds that whether or not Dr.
Mank has administered a statewide or county disability waiver system not applicable to
the testimony and opinions he provides in this matter. Further, the scope of his
experience with respect to integration and inclusion of individuals with disabilities
negates any argument that he is unqualified because he has not provided direct care
specifically to a disability waiver recipient, or failed to work in an IHO or visit a CFC
outside of his work for this case. The Court finds that Dr. Mank’s competencies clearly
match the testimony, report, and opinions he offers such that he qualifies as an expert in
this case. Robinson v. Geico Gen. Ins. Co., 447 F.3d 1096, 1101 (8th Cir. 2006.)
Finally, Defendant argues that Dr. Mank’s testimony and opinions should be
excluded because they are not reliable. (Def. Memo. at 14-18.) Defendant contends that
because Dr. Mank conducted interviews at only five CFCs and nine IHOs selected by
Plaintiffs’ counsel to generate characteristics and quality of life outcomes that are more
likely at CFCs and IHOs, the analytical leap he attempts to draw from his small sample to
all CFCs and IHO in Minnesota is too great. She also argues that Dr. Mank relied on
National Core Data (“NCI”) that is flawed because DHS does not retain data in the form
that NCI requests, and because he used the most recent year available to compare
national-level group home versus “individual home” data on NCI’s website which did not
include Minnesota, and was stale because it was from 2013-2014. (Def. Memo. at 20.)
She argues further that the Minnesota Quality of Life Data that Dr. Mank relied on did
not compare group homes and IHOs and related only to daytime activities. (Id.) Finally,
she contends that Dr. Mank did not rely on sufficient facts to reach his opinions about
14

whether the Named Plaintiffs are or were in their most integrated setting because he
relied on self-reports as opposed reviewing any documents. (Id.)
There is no one-size-fits-all test for reliability; rather, the Court must determine if
an expert’s opinions comply with the standards of the “relevant field.” Kumho Tire, 526
U.S. at 152. Here, Dr. Mank conducted a qualitative study that drew from a variety of
sources including interviews with various stakeholders, observations at CFC facilities and
IHOs in Minnesota, national and state data, and review of nearly 100 different
documents. (Dr. Mank Report at 3-4; see also Dr. Mank Report, Ex. B.) While
Defendant argues that Dr. Mank’s sampling of CFC facilities and IHOs was too small to
generalize to Minnesota’s CFC facilities and IHOs as a whole, Dr. Mank testified that
qualitative research involves “collecting information that is credible and corroborated
with other information” and that there is “no specific number” that constitutes an
adequate sample size. (Dr. Mank Dep. at 192-93.) Dr. Mank also testified that the
appropriate number of people to interview was based on, “context, what one is studying,
[and] what other available sources other sources of information there are.” (Id. at 221222.)
The Court finds that Dr. Mank’s approach is “one generally employed in the social
sciences.” See U.S. v. Hammoud, 381 F.3d 316 337 (4th Cir. 2004) (en banc) (rev’d on
other grounds). In Hammoud, the Fourth Circuit upheld the admission of an opinion
based on qualitative research that the expert described as:
Basic academic intellectual research combined with the techniques I was
taught in . . . various courses I took as an analyst for the government both
taught that the best way to go about making sense of something in the
15

social sciences is to collect as much information as possible and to balance
each new incoming piece of information against the body of information
that you’ve built to that point....So it’s a constant vetting process. And the
more rigorous you are, the better your information will be.
381 F.3d at 337. This explanation closely resembles Dr. Mank’s approach; he collected
and corroborated information from a number of sources to build a body of information
from which to draw his opinions. Accordingly, the Court declines to exclude his
opinions based on the size of the specific size of his interview sample.
With respect to the reliability of the NCI data, that is a fact dispute that cannot be
resolved on a motion to exclude experts. Even if the data is not reliable, Dr. Mank’s
opinions are based on his own experience and a variety of sources, rendering the NCI
data a single element in a much larger framework. See Glossip v. Gloss, 135 S. Ct. 2726,
2745 (2015) (declining to exclude expert testimony when two of expert’s multiple
sources were disputed as unreliable).
While Defendant also cites other data as unreliable and takes issue with Dr.
Mank’s reliance on self-reports as opposed to document review, the factual basis of Dr.
Mank’s opinions go to the credibility of his testimony, not its admissibility. Bonner, 259
F.3d at 929–30. To the extent Defendant disputes his credibility, she may address her
concerns through cross examination or rebut his testimony with her own expert. See,
e.g., Rockwood Retaining Walls, Inc. v. Patterson, Thuente, Skaar & Christensen, P.A.,
Civ. No. 09-2493, 2011 WL 2845529, at *5 (D. Minn. July 18, 2011). Accordingly, the
Court declines to exclude Dr. Mank’s opinions as unreliable.

16

In summary, the Court finds that Dr. Mank is qualified as an expert in this matter,
and that the testimony and opinions he offers are both helpful and reliable. The questions
that Defendant raises with respect to the factual basis of Dr. Mank’s opinions go to the
credibility of his testimony, not its admissibility. Bonner, 259 F.3d at 929. Accordingly,
Court denies Defendant’s motion with respect to Dr. Mank.
2.

Dennis F. Price

Price offers four opinions: (1) Minnesota’s Olmstead Plan Does not effectively
ensure that individuals with disabilities who live in CFC facilities are provided with
reasonable choice, opportunity, or assistance to move to IHOs; (2) the policies and
practices of DHS do not provide individuals with disabilities who live in CFC facilities
with adequate choice and opportunity to reside in IHOs that are the most integrated
settings appropriate to their needs; (3) Plaintiffs’ requested relief constitutes reasonable
modifications to DHS’s Disability Waiver System that will assist individuals with
disabilities with planning for, moving to, and living in IHOs that are the most integrated
settings appropriate to their needs; and, (4) Plaintiffs’ requested relief does not
fundamentally alter DHS’s Disability Waiver System. (Price Report at 26-77.) The
opinions in his report are based on his personal knowledge, professional judgment,
expertise, and analysis of materials and information, including information collected
through interviews. (Id. at 24-25.)
Defendant first argues that Price’s opinions about reasonable accommodation and
fundamental alternation are not helpful because he does not offer an opinion about the
cost of the proposed relief. (Def. Memo. at 10-11.) Defendant contends that because
17

Price does not opine about the State’s budget or the competing demands of other services
the State provides, his testimony will not be helpful to determine whether the State has an
effectively working Olmstead Plan.7 (Id. at 11.) She argues that Plaintiffs have the
burden to show that their requested relief is reasonable before she has the burden to prove
that the proposed accommodations constitute a fundamental alternation to its Olmstead
Plan. (Def. Reply at 9.)
The fact that Price does not offer a formal opinion on cost does not negate the
overall helpfulness of his opinions with respect to the reasonableness of Plaintiffs’
requested relief. The Court finds that Price’s opinions and supporting analysis will help
it better understand the evidence in this case to determine the facts in issue, whether or
not they include a full cost analysis. Further, the record reflects that Price did consider
the cost of Plaintiffs’ requested relief to inform his opinions.8 The Court resolves any
doubts regarding the overall value of Price’s testimony in favor of its admissibility. See
Clark by Clark, 150 F.3d at 915.
Defendant next argues that Price’s report, testimony, and opinions should be
excluded because he is not qualified. (Def. Memo. at 13.) Defendant does not argue that
Price is unqualified to offer any opinion in any case, but that he is not qualified to offer
the opinions he gives in this particular case. (Def. Reply at 7.) In support, she argues

7

The Court notes that Price states, “[m]any of the items in Plaintiffs’ requested
relief can be incorporated in DHS’s current efforts at little or no cost to the state.” (Price
Report at 76.) He also states his belief that Plaintiffs’ requested relief would likely result
in costs savings for DHS. (Id.)
8

Defendant later cites these assertions as unreliable.
18

that he does not have experience administering a state waiver program, he has not
managed a statewide review of the program, and he has not read the Olmstead decision.
The Court is unpersuaded. While Price has not administered a state waiver
program, he has over 40 years of professional experience in the disability services in
Minnesota, a decade of which included supervision of the waiver program of third largest
county in Minnesota. (Doc. No. 589 (“Price Decl.”) ¶¶ 4, 8, 9.) He also represented
Dakota County on the Waiver Rates Advisory Group and served as an appointee of the
Minnesota Association of County Social Service Agencies on the State Quality Council,
which helped monitor and improve the quality of community-based services statewide.
(Price Report at 21.) Based on Price’s experience and knowledge in the disability
services field, particularly in the area of waiver services, the Court finds that Price
possesses sufficient “knowledge, skill, experience, training, or education sufficient to
assist the trier of fact, which is satisfied where expert testimony advances the trier of
fact’s understanding to any degree.” Robinson v. Geico Gen. Ins. Co., 447 F.3d 1096,
1101 (8th Cir. 2006.) (internal quotation marks and citation omitted.)
Finally, Defendant argues that Price’s testimony and opinions should be excluded
because they are not reliable. (Def. Memo. at 14-18.) Specifically, she argues that Price
relied on “irrefutably unreliable data and failed to control for relevant factors when
assessing the cost of service.”9 (Id. at 16.) Consequently, Defendant contends that

9

Defendant argues that Price used unreliable NCI data to conclude that “Minnesota
has more individuals with disabilities living in four-person group homes than any other
state in the country.” (Def. Memo. at 16.) As discussed above, Defendant alleges that
this data is not reliable because DHS does not retain data in the form that NCI requests.
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Price’s opinions on whether Plaintiffs’ proposed modifications are reasonable, whether
Minnesota has a working Olmstead Plan; and whether Plaintiffs’ requested relief
fundamentally alters DHS’s Disability Waiver System are nothing more than ipse dixit
and should be excluded. (Id. at 18.)
As discussed above, while cost is one factor that affects the reasonableness of
Plaintiffs’ modifications, failure to formally opine on the cost of service does not negate
the overall usefulness or reliability of Price’s opinions as a whole. While Defendant
argues that Price relied on unreliable data to support his opinions, the Court finds that the
contested data is one of several sources Price used to inform his opinions including his
own personal knowledge, professional judgment, expertise, and consideration of
hundreds of documents in preparing his report. (See, e.g., Price Report at 79-88.) The
factual basis of Price’s opinions goes to the credibility of the testimony, not its
admissibility. Bonner, 259 F.3d at 929. Defendant may test the credibility of Price’s
opinions on cross examination, rebut the testimony with her own witnesses, and submit
her own contrary expert evidence so the factfinder my determine the proper weight and
credibility to assign Price’s testimony. See, e.g., Rockwood Retaining Walls, Inc., 2011
WL 2845529, at *5.

(Id.) Defendants also argue that Price relied on testimony taken out of context to assert
that Plaintiffs’ requested relief could result in cost savings for DHS. (Id.) Plaintiffs
argue that the contested data is reliable. (Doc. No. 588 (“Pl. Opp.”) at 24-25.) Whether
or not the disputed data is reliable does not alter the Court’s analysis.
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In short, the Court finds that Price is qualified as an expert in this matter, and that
the testimony and opinions he offers are both helpful and reliable. Accordingly, the
Court denies Defendant’s motion with respect to Price.
CONCLUSION
For the reasons stated above, the Court finds that the expert testimony and
opinions of John Patterson are not relevant to Plaintiffs’ claims and excludes them on this
basis. The Court also finds that despite Defendant’s objections, experts Dr. David
Michael Mank and Dennis F. Price both qualify as experts in this matter, and that their
opinions are both helpful and reliable.
ORDER
Accordingly, based on the files, records, and proceedings herein, and for the
reasons set forth above, IT IS HEREBY ORDERED that:
1.

Plaintiff’s Motion to Exclude Expert Testimony of John Patterson (Doc.

No. [488]) is GRANTED.
2.

Defendant’s Motion to Exclude Plaintiffs’ Expert Testimony, Reports, and

Opinions (Doc. No. [468]) is DENIED.

Dated: August 6, 2019

s/Donovan W. Frank
DONOVAN W. FRANK
United States District Judge

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