Van Orden et al v. Healthlink, Inc. et al

Filing 400

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendants' motion to exclude the testimony and reports of David Prescott and Brian Abbott is GRANTED in part and DENIED in part. (Doc. No. 382 .) The motion is GRANTED with respect to Abbott's opinions that the SVP civil commitment process is flawed public policy and biased in favor of commitment. The motion is DENIED in all other respects. Signed by District Judge Audrey G. Fleissig on March 20, 2015. (BRP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JOHN VAN ORDEN, et al.,
Plaintiffs,
v.
KEITH SCHAFER, et al.,
Defendants.

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Case No. 4:09CV00971 AGF

MEMORANDUM AND ORDER
This matter is before the Court on Defendants’ motion (Doc. No. 382) to exclude the
reports and testimony of Plaintiffs’ expert witnesses, David Prescott and Brian Abbott, from
the bench trial in this case. For the reasons set forth below, the motion shall be granted in
part and denied in part.
BACKGROUND
Plaintiffs in this class action are civilly committed residents of the Missouri
Department of Mental Health’s (“DMH’s”) Sex Offender Rehabilitation and Treatment
Services (“SORTS”) facilities, who have been declared sexually violent predators (“SVPs”)
under Missouri’s SVP statute, Mo. Rev. Stat. § 632.480 et seq. Plaintiffs assert claims
under 42 U.S.C. § 1983 and the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§
12101 et seq., challenging the care and treatment provided to SORTS residents, and the
reimbursement sought by the state for that treatment.
One of Plaintiffs’ experts, David Prescott, is a licensed clinical social worker. He
serves as the Director of Professional Development and Quality Improvement for Becket

Family of Services, which operates a range of inpatient and outpatient programs, including
treatment of individuals who have been sexually abused. He previously served as the
Clinical Director of the Minnesota Sex Offender Program in Moose Lake, Minnesota and as
the Treatment Assessment Director for Wisconsin’s Sand Ridge Secure Treatment Center,
both of which are SVP civil commitment programs like SORTS. Prescott has also served as
a consultant and trainer for other state SVP civil commitment programs. He conducted a
training of clinicians at the SORTS facility in Farmington, Missouri in 2014.
In his expert report, Prescott provides the following opinions:
Opinion 1: SORTS, as presently constituted, is not structured in such a
manner to provide effective and comprehensive mental health treatment
necessary to result in conditional or full releases for any covered residents.
Opinion 2: The standards for release of SORTS residents are vague,
unrealistic and unachievable, and further not supported by mental health
professional standards.
Opinion 3: SORTS does not make use of or employ the least restrictive
alternative for its residents.
(Doc. No. 383-1.)
Plaintiffs’ other expert, Brian Abbott, is a licensed clinical psychologist and clinical
social worker. He has worked as a clinician, forensic evaluator, author, and trainer in the
area of child sexual abuse. He has treated or supervised the treatment of hundreds of sex
offenders, and he has testified in SVP civil commitment proceedings around the country,
including in Missouri.
In his expert report, Abbott provides the following opinions: (1) SVP civil
commitment programs represent flawed public policy in general; (2) the standards for
release at SORTS are unrealistic and/or unachievable; (3) SORTS does not have an effective

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treatment program because it appears that SORTS does not allow releases to less restrictive
alternatives, SORTS appears to be underfunded, residents appear to be receiving less than
the amount of treatment time provided at other sex offender treatment programs, and the
lack of releases at SORTS likely instills a sense of hopelessness in SORTS residents, which
is counter-therapeutic; (4) the SORTS conditional release program is unrealistic,
unworkable, and disingenuous because, for example, conditionally released residents do not
appear to be permitted to spend meaningful time outside of the SORTS facilities, and it
appears that residents the DMH identified as being eligible for conditional release were not
informed of this fact and were not afforded an opportunity for conditional release; (5)
SORTS lacks a least restrictive alternative; and (6) Missouri’s SVP civil commitment
procedures in general appear to be biased toward promoting commitment. (Doc. No. 3834.)
Neither Prescott nor Abbott interviewed any of the residents or staff at SORTS.
Instead, they based their opinions on a review of discovery in this case and their training,
education, and experience with other SVP civil commitment programs around the country.
The discovery reviewed by both experts includes emails and correspondence among DMH
employees expressing concerns regarding overcrowding, understaffing, underfunding, and
low or non-existent “graduation” rates at SORTS; treatment materials from a one-time
treatment director at SORTS, Dr. Mark Carich; other documents and interrogatory responses
produced by Defendants; and transcripts of depositions conducted in this case.
Defendants do not challenge the qualifications of Prescott or Abbott; rather, they
argue that the expert reports and accompanying testimony are not based on sufficient facts

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or data, are unhelpful, and do not reliably apply the principles and methods to the facts of
the case. Defendants argue that the experts’ opinions are inadmissible because they are
based on “outdated” emails and documents. Defendants note that the experts did not
interview any residents or staff at SORTS, did not discuss standards of release with anyone
at SORTS, do not know whether the treatment materials they reviewed were ever
implemented at SORTS, and do not know what treatment methods are currently being used
at SORTS.
Defendants also argue that Abbott’s opinions regarding the SVP civil commitment
process generally, including that it represents flawed public policy and appears biased
toward commitment, are irrelevant to the issues in this case, which are limited to the
constitutionality of the care and treatment provided to SORTS residents and the
reimbursement sought for that treatment.
Plaintiffs respond that Defendants’ challenges regarding the factual bases of the
expert testimony go to the weight of the testimony, not its admissibility. Plaintiffs argue
that the experts’ extensive experience with SVP civil commitment programs around the
country, and their review of the extensive discovery in this case, provide a sufficient basis
for their opinions and will help the Court resolve the issues in this case. Plaintiffs note that
Defendants will be free at trial to challenge the data upon which the experts relied, and to
present their own experts’ opinions.
Plaintiffs also argue that Abbott’s opinions regarding Missouri’s SVP civil
commitment process generally are relevant to Plaintiffs’ claims that the care and treatment
at SORTS is unconstitutional and, alternatively, a violation of the ADA. Plaintiffs note that

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Abbott’s opinions discuss the psychological evaluations performed by certified forensic
experts during the civil commitment process, and the fact that some SORTS residents were
committed despite an evaluation that they did not suffer from a mental abnormality and/or
did not meet the risk threshold set forth in the SVP statute. Plaintiffs argue that these
evaluations are relevant to their care and treatment claims because the evaluations should
have, but have not, been considered in formulating the treatment provided to, and standards
for release of, the respective SORTS residents. In other words, Plaintiffs argue that
Abbott’s opinions regarding the continued commitment of SORTS residents who were at
one time found to not suffer from a mental abnormality that makes them sexually dangerous
help demonstrate that SORTS program, as applied in these instances, is unlawful.
DISCUSSION
The admission of expert testimony in federal court is governed by Federal Rule of
Evidence 702. Wagner v. Hesston Corp., 450 F.3d 756, 758 (8th Cir. 2006). Rule 702
provides:
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.

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Fed. R. Evid. 702. The rule was amended in 2000 in response to Daubert v. Merrell Dow
Pharms., Inc., 509 U.S. 579 (1993), which charged trial judges with a “gatekeeping” role to
exclude unhelpful and unreliable expert testimony.
“As a general rule, 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.” First Union Nat. Bank v. Benham, 423 F.3d
855, 862 (8th Cir. 2005). “Only if the expert’s opinion is so fundamentally unsupported that
it can offer no assistance to the jury must such testimony be excluded.” Id. And any
“doubts regarding whether an expert’s testimony will be useful should generally be resolved
in favor of admissibility.” Clark By & Through Clark v. Heidrick, 150 F.3d 912, 915 (8th
Cir. 1998) (citations omitted).
Moreover, because “[t]he main purpose of Daubert exclusion is to protect juries from
being swayed by dubious scientific testimony,” Daubert standards are relaxed in bench
trials, where there is no jury and the trial court is the fact finder. In re Zurn Pex Plumbing
Prods. Liab. Litig., 644 F.3d 604, 613 (8th Cir. 2011); Tussey v. ABB, Inc., 746 F.3d 327,
337 (8th Cir. 2014) (“In a bench trial, we not only give the trial court wide latitude in
determining whether an expert’s testimony is reliable, we also relax Daubert’s
application.”) (internal citations omitted); David E. Watson, P.C. v. United States, 668 F.3d
1008, 1015 (8th Cir. 2012) (holding that Daubert’s application is relaxed for bench trials
because “there is less need for the gatekeeper to keep the gate when the gatekeeper is
keeping the gate only for himself”) (citation omitted).

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In this bench trial, the Court finds that the expert reports and testimony of Prescott
and Abbott are admissible except in one narrow respect, discussed below. The Court agrees
with Plaintiffs that the factual bases of the expert opinions are matters of credibility, not
admissibility. Any weaknesses perceived by Defendants in the factual bases of the expert
opinions may be explored on cross examination. See Garrett v. Albright, No. 06-CV-0785,
2008 WL 795610, at *2 (W.D. Mo. Mar. 21, 2008) (rejecting the defendants’ attack on
factual basis of expert’s conclusion, including “what records he may or may not have
reviewed, whether he should have made calls to . . . other hospitals or whether one interview
was sufficient,” and holding that these matters went to credibility, not admissibility); Kay v.
Lamar Adver. of S. Dakota, Inc., No. CIV. 07-5091-KES, 2009 WL 2606234, at *3 (D.S.D.
Aug. 21, 2009) (“Defendants argue that Dr. Lierman could have obtained additional facts by
interviewing some of the officers of ARXX. The fact that Dr. Lierman may have obtained
additional data does not demonstrate that Dr. Lierman relied on insufficient facts.”).
The Court will, however, exclude Abbott’s opinions that SVP civil commitment
programs represent flawed public policy in general, and that Missouri’s SVP civil
commitment procedures appear to be biased toward promoting commitment. As
Defendants correctly note, Plaintiffs do not challenge Missouri’s ability to civilly commit
SVPs. Therefore, Abbott’s opinions regarding whether the civil commitment of SVPs is
bad policy or Missouri’s procedures are biased are unhelpful and irrelevant. The Court will
grant Defendants’ motion to exclude these two opinions. However, this ruling should not be
read to prohibit Plaintiffs from introducing the factual information upon which Abbott may
have relied, such as the nature of the psychological evaluations conducted during the civil

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commitment process, to the extent Abbott contends these evaluations should impact
treatment and standards of release at SORTS.
CONCLUSION
For the reasons set forth above,
IT IS HEREBY ORDERED that Defendants’ motion to exclude the testimony and
reports of David Prescott and Brian Abbott is GRANTED in part and DENIED in part.
(Doc. No. 382.) The motion is GRANTED with respect to Abbott’s opinions that the SVP
civil commitment process is flawed public policy and biased in favor of commitment. The
motion is DENIED in all other respects.

_______________________________
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 20th day of March, 2015.

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