EDMOND v. PLAINFIELD BOARD OF EDUCATION
Filing
138
OPINION. Signed by Judge Kevin McNulty on 9/13/2018. (sm)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
TYEAST M. EDMOND,
No. 1 1-cv-2805 (KM)(JBC)
Plaintiff,
OPINION ON MOTION INLIMINE
V.
PLAINFIELD BOARD OF EDUCATION,
Defendant.
KEVIN MCNULTY, U.S.D.J.:
Plaintiff Tyeast M. Edmond’s suit arises from her employment as a social
worker with the defendant, Plainficid Board of Education (“the Board”). After
summary judgment practice, four claims remain for trial: retaliation under Title
VII of the Civil Rights Act of 1964; invasion of privacy; false light; and
intentional infliction of emotional distress. Emotional distress is also a
component of the damages sought.
Now before the Court is Edmond’s motion in limine to bar the testimony
of the Board’s expert on emotional distress. For the reasons stated herein the
motion will be granted as to the causation portion of Ejiofor’s opinion and
report, and denied with respect to the remaining portions.
A. QUALIFICATIONS OF EXPERT
Edmond challenges the qualifications of Udoka Ejiofor, the Board’s
proposed expert. Ejiofor, a licensed psychiatric mental health nurse
practitioner, performed a psychiatric evaluation and rendered a report
concluding that Edmond suffers from Post-Traumatic Stress Disorder (“PTSD”)
and Narcissistic Personality Disorder (“NPD”). (ECF no. 108-2).
Federal Rule of Evidence 702 governs the admissibility of expert
testimony. It provides certain prerequisites for the admission of expert
1
testimony:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testilS’ 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.
The Rule “embodies a trilogy of restrictions on expert testimony:
(3d Cir.
qualification, reliability and fit.” Schneider u. Fried, 320 F.3d 396, 404
s
2003). Qualification “refers to the requirement that the witness posses
Cir.
specialized expertise.” Id.; see Waldorf v. Shuta, 142 F.3d 601, 625 (3d
regarding
1998) (“Rule 702 requires the witness to have specialized knowledge
is
the area of testimony.” (internal quotation omitted)). This requirement
g qualify
interpreted liberally: a “broad range of knowledge, skills, and trainin
PCB Litig., 35
an expert.” Waldoif, 142 F.3d at 625; see In re Puoli R.R. Yard
ibility
F.3d 717, 741 (3d Cir. 1994) (“Paolif’). This “liberal policy of admiss
.” Paoh
extends to the substantive as well as the formal qualification of experts
rigorous
35 F.3d at 741. The Third Circuit has “eschewed imposing overly
lized
requirements of expertise and ha[sj been satisfied with more genera
rather than
qualifications.” Id. Exclusion of expert testimony is the exception
contrary
the rule because “v]igorous cross-examination, presentation of
L
traditional and
evidence, and careful instruction on the burden of proof are the
Daubert v.
appropriate means of attacking shaky but admissible evidence.”
Merrell Dow Pharms., Inc., 509 U.S. 579, 580 (1993).
the field
Ejiofor meets the minimal qualifications to testify as an expert in
4822, 2011 WL
of psychiatric nursing. See Lujano v. Town of Cicero, No. 07 C
can give expert testimony if
6097719, at *2 (N.D. Ill. Dec. 6, 2011) (“[N]urses.
.
2
.
they meet the standards for doing so under Rule 702.”). Ejiofor is a board
certified psychiatric mental health nurse practitioner. (ECF no. 108-4 at 28:1721). He is licensed as a registered nurse and advanced practice nurse in New
Jersey and New York. (ECF no. 108-3). In 2005, Ejiofor received a bachelor of
science degree in nursing from the University of Medicine and Dentistry
(“UMDNJ”). (ECF nos. 108-3; 108-4 at 11:9-17). In 2011, he received his
masters of science in nursing from UMDNJ. (ECF no. 108-4 at 11:25-12:4).
Ejiofor’s training was in adult psychiatry and mental health. (ECF no. 108-4 at
13:24-14:2). In 2013, Ejiofor received a master’s certificate in psychiatric
family health from Rutgers University. (EC? no. 108-4 at 13:3-5).’
As a licensed and certified psychiatric mental health nurse practitioner,
Ejiofor performs psychiatric evaluations and treats psychiatric patients. (ECF
no. 108-4 at 38:5-10). He has more than 450 active patients and has been
performing psychiatric evaluations since May of 2012. (ECFnos. 108-3; 108-4
at 95:2). Ejiofor is part of various professional associations, including the New
Jersey Society of Psychiatric Advanced Practice Nurses, and he is affiliated with
St. Care’s Hospital in Denville, New Jersey. (ECF no. 108-3).
Edmond challenges Ejiofor’s qualifications on the basis that he does not
have a medical degree, and is not a psychiatrist or a psychologist. (ECF no.
108-4 at 27:18-23, 35:11-14, 35:25-36:4). It is well established, however, that
qualification as an expert does not correspond in any simple way to specific
academic credentials. In fact, “‘it is an abuse of discretion to exclude testimony
simply because the trial court does not deem the proposed expert to be the best
qualified or because the expert does not have the specialization that the court
considers most appropriate.”’ Lauria v. AMTRAK, 145 F.3d 593, 598—99 (3d Cir.
1998) (quoting Holbrook v. Lykes Bros. S.S. Co., 80 F.3d 777, 782 (3d Cir.
Plaintiffs counsel has made much of the fact that Ejiofor also has a Ph.D. in
materials science, as if that additional training would somehow detract from his
medical expertise. I give that argument no weight. As the holder of a Ph.D., Ejiofor
may have used the tide “Doctor,” but to avoid confusion, the tide “Doctor” will not be
used to refer to him at trial.
3
alone, and
1996)). Experts can be qualified “on the basis of practical experience
a formal degree, title, or educational specialty is not required.” Id. “[linsistence
Circuit
on a certain kind of degree or background is inconsistent” with Third
Cir. 1990)
jurisprudence. In re Paoli R.R. Yard PCB Litig., 916 F.2d 829, 855 (3d
cation
(“PaoliIf’); see also Waldorf 142 F.3d at 626 (“jI}n considering the qualifi
ed witness
of witnesses as experts, we stress that ordinarily an othenvise qualifi
is not disqualified merely because of a lack of academic training.”).
state
Ejiofor is qualified to render an opinion as to Edmond’s psychiatric
Bhd. of
based on his experience and education. See Guamied v. Pa. Fed’n.
(holding that
Maint. of Way Emps., 153 F. Supp. 2d 736, 741 (E.D. Pa. 2001)
g, and master of
psychotherapist, who had bachelor of science degree in nursin
ling) had “the
science degree in education (specializing in mental health counse
the cause of
requisite credentials and expertise to give an expert opinion as to
v. Tex. DOT, 2015
[plaintiffs] alleged mental and emotional distress.”); Saldana
g that clinical
U.S. Dist. LEXIS 83815, *17l8 (W.D. Tex. June 29, 2015) (holdin
was qualified to
nurse specialist and board-certified advanced practice nurse
and
opine on plaintiffs emotional distress damages in discrimination
logist, board
retaliation lawsuit even though expert was “not a therapist, psycho
out as being
certified psychologist, or counselor” and did not “hold herself
trained in psychology or psychiatry.”).
B. METHODOLOGY
ng the
Edmond contests the reliability of Ejiofor’s opinion by attacki
ts that Ejiofor failed
sufficiency of the factual basis underlying it. Edmond asser
As a result,
to review the records of Dr. Taylor, her treating psychologist.
e his opinions are
Edmond asserts, Ejiofor’s opinion should be excluded becaus
of psychiatric
“mere possibilities,” as opposed to probabilities within a degree
certainty.
s and
“Reliability” requires that the opinion be “based on ‘the method
pported
procedures of science’ rather than on ‘subjective belief or unsu
speculation.”’ Paoli I, 35 F.3d at 742 (citing Daubert,
4
U.S. at 590). Thus,
“the expert must have ‘good grounds’ for his or her belief.” Id. (quoting Daubert,
509 U.S. at 590). Ultimately, the reliability requirement ensures 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 field.” Kumho Tire Co. v.
Carmichael, 526 U.S. 137, 152 (1999). Accordingly, the “focus must be solely
on principles and methodology, not on the conclusions they generate.” Paoli I,
35 F.3d at 744.
Reliability is a “flexible” test. Kumho Tire, 526 U.S. at 141 (internal
citation omitted). Factors “deemed important” for determining reliability
include:
(1) whether a method consists of a testable hypothesis; (2) whether
the method has been subject to peer review; (3) the known or
potential rate of error; (4) the existence and maintenance of
standards controlling the technique’s operation; (5) whether the
method is generally accepted; (6) the relationship of the technique
to methods which have been established to be reliable; (7) the
qualifications of the expert witness testifying based on the
methodology; and (8) the non-judicial uses to which the method
has been put.
745PaoliI, 35 F.3d at 791 n.8; see also Elcock z,’. Kmafl Corp., 233 F.3d 734,
applied
46 (3d Cir. 2000). These factors are not exclusive, nor must they all be
,
in every case. Kumho Tire, 526 U.S. at 141; Elcock, 233 F.3d at 746. Rather
lity in a
whether “specific factors are, or are not, reasonable measures of reliabi
e to
particular case is a matter that the law grants the trial judge broad latitud
determine.” Kumho Tire, 526 U.S. at 153.
Federal Rule of Evidence 703 sets forth the requirements relating to the
underlying facts or data on which an expert may base his or her opinion:
An expert may base an opinion on facts or data in the case that the
expert has been made aware of or personally observed. If experts in
the particular field would reasonably rely on those kinds of facts or
data in forming an opinion on the subject, they need not be
admissible for the opinion to be admitted. But if the facts or data
would otherwise be inadmissible, the proponent of the opinion may
disclose them to the juzy only if their probative value in helping the
5
jury evaluate the opinion substantially outweighs their prejudicial
effect.
Fed. R, Evid. 703.
“[W]hen a trial judge analyzes whether an expert’s data is of a type
r
reasonably relied on by experts in the field, he or she should assess whethe
d by
there are good grounds to rely on this data to draw the conclusion reache
can
the expert.” Paoli i, 35 F.3d at 749. In making that assessment, the judge
not only “take into account the particular expert’s opinion that experts
as
reasonably rely on that type of data, as well as the opinions of other experts
he or
to its reliability, but the judge can also take into account other factors
she deems relevant.” Id. at 748.
JMJ
“An expert’s testimony must have some connection to existing facts.”
LEXIS 5098,
Enters. u. Via Veneto italian Ice, No. 97-CV-0652, 1998 U.S. Dist.
ces and
at *16 (E.D. Pa. Apr. 15, 1998). “Experts are expected to make inferen
data is
state opinions and they are granted wide latitude in determining what
expert’s
needed to reach a conclusion. Questions as to the sufficiency of an
540 F. Supp. 2d
factual basis are generally left to the jury.” Rn!! a Marandola,
In Paoli I,
563, 568 (E.D. Pa. 2008) (alteration and internal quotation omitted).
a patient’s
35 F.3d at 762, the Third Circuit concluded that either a review of
reliable
medical records or a personal examination of a patient provides a
s testimony
source of information to support a medical diagnosis. If an expert’
it should be tested by the adversary process
States v.
competing expert testimony and active cross-examination.” United
Mitchell, 365 F.3d 215, 244 (3d Cir. 2004).
rests on “good grounds
--
.
.
.
1,
Ejiofor conducted a psychiatric evaluation of Edmond on October
evaluation
2016. (ECF no. 108-4 at 44:10-14). Ejiofor has testified that this
at 52:6-12,
was sufficient to permit him to render a diagnosis. (ECF no. 108-4
observed the
108:17-22, 109:16-17). He further testified that he personally
conclusions
symptoms of PTSD and NPD during this evaluation, and that these
108-4 at 76:21were reached within a degree of psychiatric certainty. (ECF no.
25, 94:3-5).
6
Ejiofor’s diagnosis is not excludable simply because it is “possible” that
his opinion would change if he reviewed the records of Edmond’s treating
psychologist, Dr. Taylor. (See ECF no. 108-4 at 84:5-85: 1). His diagnosis is
based on the symptoms exhibited by Edmond during the psychiatric
evaluation, as well as the information that was provided to him. That is
sufficient for Ejiofor to proffer an opinion as to diagnosis. See Pooh I, 35 F.3d at
762 (“IA] doctor only needs one reliable source of information showing that the
plaintiff is ill and either a physical examination or medical records will suffice
- but the doctor does need at least one of these sources.”); Matlin u. Langkow,
-
65 F. App5c 373, 384 (3d Cir. 2003) (holding that expert testimony properly
admitted where expert examined plaintiff, even though expert did not review
any of plaintiffs medical records; this fact went to weight rather than
admissibility of testimony). Ejiofor’s failure to review additional medical records
is, to be sure, fodder for cross-examination, but not for exclusion of his
testimony.
Regarding the admissibility of Ejiofor’s causation opinion, however, I
cannot reach the same conclusion. I analyze the causation component
separately. See Helter v. Show Indus., Inc., 167 F.3d 146, 155 (3d Cir. 1999)
(“[R]eliability analysis applies to all aspects of an expert’s testimony: the
methodology, the facts underlying the expert’s opinion, the link between the
r
facts and the conclusion, et alia.” (citing Paoli I, 35 F.3d at 743-45)). Ejiofo
opines that Edmond “mimicked” symptoms of PTSD, which would “not support
recent trauma.”2 (ECF no. 108-4 at 79:15-18). From this, Ejiofor concluded
that Edmond’s PTSD was not caused by conditions related to the workplace,
which, presumably, he deemed too “recent” to qualify as a cause. Instead,
Ejiofor determined that Edmond’s VSD was caused by an “unverbalized
childhood experience” and “her unreported conflicted problems with her
superiors at work.” (ECF no. 108-2, p.7). Ejiofor admitted in his deposition that
Ejiofor evaluated Edmond on October 1, 2016. (ECF no. 108-4 at 44:1014). The alleged retaliation dates back to 2008. (ECF no. 1).
2
7
ation and
Edmond made no reference to a childhood trauma during the evalu
108-4 at
that he had no information about Edmond’s life before 2008. (ECF no.
79:24-80:2).
basis
This opinion is inadmissible for several reasons. First, the factual
nowhere in the
of Ejiofor’s opinion related to an “unverbalized trauma” appears
itted that
record; for all I can tell, it constitutes pure speculation.3 Ejiofor adm
ond regarding
he was waiting for, but had not received, information from Edm
On this basis
any potential childhood trauma. (ECF no. 108-4 at 83:6-15).
ed by an
alone, Ejiofor’s opinion that Edmond’s emotional distress was caus
F.3d at 404
“unverbalized trauma” is not admissible. See Schneider, 320
belief or
(stating that expert testimony cannot be based on “subjective
unsupported speculation”’ (quoting Paoli I, 35 F.3d at 742)).
“mimicking”
Second, there is nothing in the record that establishes that
by any
of symptoms is a psychiatric term or condition that is accepted
n that such a
recognized authority. Nor is any basis proffered for the notio
r than a
“mimicking” individual must have suffered an older trauma, rathe
psychotherapist
recent one. Cf Guamieri, 153 F. Supp. 2d at 742 (permitting
stical Manual of the
to testify based on criteria set forth in “Diagnostic and Stati
the leading text in
American Psychiatric Association, Fourth Edition (‘DSM-IV’),
the field of psychiatry/psychology”).
“unverbalized”
Ejiorfor did not explain how he concluded that Edmond’s
not “recent,” and
childhood trauma and her conflicts with supervisors were
is not even a
therefore could be causes of Edmond’s PTSD. Indeed, there
trauma. It is entirely
definition or explanation as to what qualifies as a “recent”
her such methodology
unclear what methodology Ejiofor employed, and whet
See GE u. Joiner,
has been reviewed or accepted by the psychiatric community.
from Dr.
As part of this motion, Edmond submitted medical records
108-1, 108-5). The
Cowan, the Board’s previous expert, and Dr. Taylor. (ECF no.
in this matter.
parties have represented that Dr. Cowan is unavailable to testify
ation that
Neither Dr. Taylor’s nor Dr. Cowan’s records support Ejiofor’s specul
Edmond had an undisclosed childhood trauma.
3
8
522 U.S. 136, 146 (1997) (Neither Dauhert nor “the Federal Rules of Evidence
requires a district court to admit opinion evidence that is connected to existing
data only by the ipse dizit of the expert. A court may conclude that there is
simply too great an analytical gap between the data and the opinion
proffered.”). What Ejiofor has offered on this score is what is sometimes called a
“net opinion,” Le., one that is stated by an expert, but not sufficiently
connected to the underlying facts or an accepted methodology.
Accordingly, Ejiofor is precluded from opining that Edmond’s PTSD was
caused by an “unverbalized childhood experience” and “her unreported
conflicted problems with her superiors at work.”
C. USE OF DR. COWAN’S REPORT
Edmond asserts that Ejiofor improperly relied on Dr. Cowan’s expert
report and “parroted” Dr. Cowan’s diagnosis, findings, and observations.
Federal Rule of Evidence 703 expressly provides that “lain expert may
base an opinion on facts or data in the case that the expert has been made
offer
aware of or personally observed.” “[Ajn expert is permitted wide latitude to
opinions, including those that are not based on firsthand knowledge or
that one
observation.” Dauben, 509 U.S. at 592. To that end, “it is well settled
expert may rely upon another expert’s opinion in formulating his own.”
Carnegie Mellon Univ. v. Marvell Tech. Group, Ltd., 286 F.R.D. 266, 271 (W.D.
10-13g3,
Pa. 2012); see E. Allen Reeves, Inc. v. Michael Graves & Assocs., No.
rely on
2015 U.S. Dist. LEXIS 1212, at *15 (D.N.J. Jan. 6, 2015) (expert “may
the opinion of another expert in formulating his or her opinion.”).
However, an expert “may not parrot or act as a mouthpiece for other
Lease v.
experts’ opinions, without independent verification of those opinions.”
n v.
Lockheed Martin Corp., 6 F. Supp. 3d 546, 553 (D.N.J. 2014) (citing Muhsi
*4, *8 (D.V.I. June 8,
Pac. Cycle, Inc., No. 20 10-060, 2012 WL 2062396, at
r
2012) (holding that experts may not rely “upon opinions developed by anothe
expert’s
expert without independent verification or validation of the underlying
e the
work” because Rule 703 “contemplates that a testifying expert can validat
9
facts, data and opinions he relied upon
.
.
.
and be subject to cross-
examination on them”)). “[E]xperts who use data in their reports without
independently verifying the accuracy or reliability of those figures fail to satisfy
this Circuit’s reliability requirement.” Bnzno v. Bozzuto’s, Inc., 311 F.R.D. 124,
138 (M.D. Pa. 2015); see In re TMILitig., 193 F.3d 613, 715-16 (3d Cir. 1999)
(finding blind reliance by expert on other expert opinions demonstrated flawed
methodology under Dazi bert).
Ejiofor makes several references to Dr. Cowan’s report, but does not
parrot Dr. Cowan’s conclusions or diagnosis.
First, Ejiofor notes that Dr. Cowan diagnosed Ms. Edmond with major
depressive disorder; Ejiofor, however, concluded that Edmond did not have
major depression based on the symptoms she exhibited and the information
she provided to Ejiofor. (ECF 108-2, p.6). In disagreeing with Dr. Cowan’s
diagnosis, Ejiofor obviously was not “parroting” Dr. Cowan’s opinion or offering
it as his own.
Second, Ejiofor notes that in 2013 Ms. Edmond told Dr. Cowan her
memory was intact, but in 2016 she told Ejiofor she was having issues with her
memory. Edmond could not specify to Ejiofor when she began to have issues
with her memory loss. (ECF 108-2, p.6). From this information, Ejiofor
concluded that Edmond’s memory loss began sometime after her meeting with
Dr. Cowan in 2013. He attributed it to stress, anxiety, and lack of sleep due to
Edmond’s having held multiple jobs in the period 2013—16. (ECF no. 108-2,
p.6). This conclusion, while it used Edmond’s statement to Dr. Cowan as a
baseline, was based on Ejiofor’s firsthand evaluation of Edmond. See Durflinger
v. Artiles, 563 F. Supp. 322, 327—28 (D. Kan. 1981) (deposition testimony of
psychiatrist who had seen patient only once was admissible when opinion was
based in part on psychologist’s interviews of patient), affd, 727 F.2d 888 (10th
Cir. 1984).
Third, in diagnosing Edmond with NPD, Ejiofor noted that his diagnosis
was supported by facts in Dr. Cowan’s report. Specifically, Dr. Cowan had
10
noted that Edmond had a pattern of conflicts and complaints with authorities
in other educational settings. (ECF no. 108-2, p.7). However, Ejiofor’s diagnosis
of NPD was based primarily on his observations of Edmond. (ECF no. 108-4 at
88:6-14; 94:3-5).
In sum, a review of the report shows that Ejiofor, although he notes
certain items in Dr. Cowan’s report, will not be merely reciting Dr. Cowan’s
opinions or presenting them as his own. Ejiofor’s own evaluation and interview
of Edmond form the basis of his opinion.4
D. CONCLUSION
For the reasons stated above, Edmond’s motion to bar the testimony of
Ejiofor is granted as to the causation portion of Ejiofor’s opinion and report,
and denied with respect to the remaining portions.
Dated: September 13, 2013
C.
Kevin McNulty
United States District Judge
Because Ejiofor’s causation opinion is not admissible, this court does not
address Ejiofor’s conclusion that Edmond’s VPSD was caused by “unreported
no.
conflicted problems with her superiors at work, as noted by Dr. Cowan.” (ECF
108-2, p.7).
4
11
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?