Bishop et al v. The Children's Center for Developmental Enrichment et al
Filing
115
ORDER denying 102 Motion in Limine. Signed by Judge Gregory L Frost on 12/23/11. (kn)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
COURTLAND BISHOP, et al.,
Plaintiffs,
Case No. 2:08-cv-766
JUDGE GREGORY L. FROST
Magistrate Judge Mark R. Abel
v.
THE CHILDREN’S CENTER FOR
DEVELOPMENTAL ENRICHMENT, et al.,
Defendants.
OPINION AND ORDER
This matter is before the Court on Defendants’ Motion to Exclude Testimony Under
Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579
(1993) (“Defendants’ Daubert Motion”) (ECF No. 102) and Plaintiffs’ Response to Defendants’
Daubert Motion. For the reasons that follow, the Court DENIES Defendant’s motion.
I. Background
Plaintiffs Courtland and Michelle Bishop and their minor son C.B. reside in the
Worthington, Ohio School District (“Worthington Schools”). In 2002 Worthington Schools
placed C.B. at Oakstone Academy (“Oakstone”) after he was identified as a child with
disabilities under the Individuals with Disabilities Education Improvement Act, 20
U.S.C. § 1400 et seq. Oakstone is a school that educates autistic children in an environment with
typically developing children. C.B.’s typically developing twin was also enrolled at Oakstone.
Defendant the Children’s Center for Developmental Enrichment (“CCDE”) is a private,
non-profit corporation that is organized under Ohio law for charitable and educational purposes.
CCDE operates Oakstone. Rebecca Morrison, Ph.D., is CCDE’s Chief Executive Officer
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(“CEO”) and is named as a defendant in this action in her individual and official capacities.
After the Court issued its decisions on Defendants’ motions for summary judgment, and
Defendants’ motions for reconsideration of those decisions, the claims remaining in this case for
trial are Plaintiffs’ discrimination claim filed under Section 504 of the Rehabilitation Act of
1973, 29 U.S.C. § 794 and Plaintiffs’ claim for breach of contract.
II. Standard
Although neither the Federal Rules of Evidence nor the Federal Rules of Civil Procedure
explicitly authorize a court to rule on an evidentiary motion in limine, the United States Supreme
Court has noted that the practice of ruling on such motions “has developed pursuant to the
district court’s inherent authority to manage the course of trials.” Luce v. United States, 469
U.S. 38, 41 n.4 (1984). The purpose of a motion in limine is to allow a court to rule on issues
pertaining to evidence in advance of trial in order to avoid delay and ensure an even-handed and
expeditious trial. See Ind. Ins. Co. v. Gen. Elec. Co., 326 F. Supp. 2d 844, 846 (N.D. Ohio 2004)
(citing Jonasson v. Lutheran Child & Family Servs., 115 F.3d 436, 440 (7th Cir. 1997)).
Courts, however, are generally reluctant to grant broad exclusions of evidence in limine,
because “a court is almost always better situated during the actual trial to assess the value and
utility of evidence.” Koch v. Koch Indus., Inc., 2 F. Supp.2d 1385, 1388 (D. Kan 1998); accord
Sperberg v. Goodyear Tire & Rubber Co., 519 F.2d 708, 712 (6th Cir. 1975). To obtain the
exclusion of evidence under such a motion, a party must prove that the evidence is clearly
inadmissible on all potential grounds. See Ind. Ins. Co., 326 F. Supp. 2d at 846; Koch, 2 F. Supp.
2d at 1388; Cf. Luce, 469 U.S. at 41. “Unless evidence meets this high standard, evidentiary
rulings should be deferred until trial so that questions of foundation, relevancy and potential
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prejudice may be resolved in proper context.” Ind. Ins. Co., 326 F. Supp.2d at 846. Denial of a
motion in limine does not necessarily mean that all evidence contemplated by the motion will be
admitted at trial. Denial merely means that without the context of trial, the court is unable to
determine whether the evidence in question should be excluded. Id. The court will entertain
objections on individual proffers as they arise at trial, even though the proffer falls within the
scope of a denied motion in limine. Id. (citing Connelly, 874 F.2d at 416; Luce, 469 U.S. at 4).
III. Discussion
In Defendants’ motion, they request exclusion of certain expert opinions or portions of
those opinions pursuant to Federal Rule of Evidence 702 and the test set forth in Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The United States Supreme Court
held in Daubert that the Federal Rules of Evidence had superseded the “general acceptance” test
of Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), and that Rule 702 requires that trial
judges perform a “gate-keeping role” when considering the admissibility of expert testimony.
Daubert, 509 U.S. at 597. Rule 702 provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training, or education, may testify thereto in
the form of an opinion or otherwise, if (1) the testimony is based upon sufficient
facts or data, (2) the testimony is the product of reliable principles and methods, and
(3) the witness has applied the principles and methods reliably to the facts of the
case.
Fed. R. Evid. 702. Further, the Supreme Court has made clear that Rule 702 applies not only to
scientific testimony but also to other types of expert testimony based on technical or other
specialized knowledge. See Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147 (1999).
The trial court’s gate-keeping role is two-fold. First, a court must determine whether the
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proffered testimony is reliable. See Daubert, 509 U.S. at 590. The reliability assessment focuses
on whether the reasoning or methodology underlying the testimony is scientifically valid. Id.
The expert’s testimony must be grounded in the methods and procedures of science and must be
more than unsupported speculation or subjective belief. Id. Thus, the proponent of the
testimony does not have the burden of proving that it is scientifically correct, but that by a
preponderance of the evidence, it is reliable. In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 744
(3rd Cir. 1994).
The Supreme Court in Daubert set out four non-exclusive factors to aid in the
determination of whether an expert’s methodology is reliable: (1) whether the theory or
technique has been tested; (2) whether the theory or technique has been subjected to peer review
and publication; (3) the known or potential rate of error of the method used and the existence and
maintenance of standards controlling the technique's operation; and (4) whether the theory or
method has been generally accepted by the scientific community. Daubert, 509 U.S. at 593-94.
See also Deal v. Hamilton County Bd. of Ed., 392 F.3d 840, 851 (6th Cir. 2004). The Court in
Kumho Tire stressed that, in assessing the reliability of expert testimony, whether scientific or
otherwise, the trial judge may consider one or more of the Daubert factors when doing so will
help determine that expert’s reliability. Kumho Tire, 526 U.S. at 150. The test of reliability is a
“flexible” one, however, and the four Daubert factors do not constitute a “definitive checklist or
test” but must be tailored to the facts of the particular case. Id. (quoting Daubert, 509 U.S. at
593); see also Ellis v. Gallatin Steel Co., 390 F.3d 461, 470 (6th Cir. 2004). The particular
factors will depend upon the unique circumstances of the expert testimony involved. See Kumho
Tire Co., 526 U.S. at 151-52.
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The second prong of the gate-keeping role requires an analysis of whether the expert’s
reasoning or methodology can be properly applied to the facts at issue; that is, whether the
opinion is relevant to the facts at issue. See Daubert, 509 U.S. at 591-93. This relevance
requirement ensures that there is a “fit” between the testimony and the issue to be resolved by
the trial. See United States v. Bonds, 12 F.3d 540, 555 (6th Cir. 1993). Thus, an expert’s
testimony is admissible under Rule 702 if it is predicated upon a reliable foundation and is
relevant.
The gatekeeper role, however, is not intended to supplant the adversary system or the role
of the jury; rather, “[v]igorous cross-examination, presentation of contrary evidence, and careful
instruction on the burden of proof are the traditional and appropriate means of attacking shaky
but admissible evidence.” Daubert, 509 U.S. at 596. The judge’s role is simply to keep
unreliable and irrelevant information from the jury because of its inability to assist in factual
determinations, its potential to create confusion, and its lack of probative value. Wellman v.
Norfolk and W. Ry. Co., 98 F. Supp. 2d 919, 923-24 (S.D. Ohio 2000).
Guided by the foregoing concerns, the Court will consider Defendants’ motion. In that
motion, Defendants argue that the testimony of speech and language pathologist Lisa Audet,
Ph.D, CCC-SLP and occupational therapist Barbara B. Marin Wavrek, MHS, OTR/L should be
excluded because they are not qualified as experts in the areas of their proposed testimony and
because their methodology is faulty. This Court disagrees.
With regard to her qualifications, Lisa Audet is an assistant professor in speech pathology
and audiology at Kent State University. She took her doctorate in special education, wrote her
dissertation on behavior in children with autism, has taught applied behavior analysis, and has
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published on the relationship between communication disorders and emotional and behavioral
disorders in children, as well as repetitive behaviors in autism. As a consultant, Professor Audet
has conducted countless functional behavior assessments on autistic children in many different
contexts. The Court finds that Professor Audet is well qualified as an expert in speech
pathology, autism and special education.
With regard to Barbara Wavrek, she has her bachelor’s and master’s degrees in
occupational therapy and has completed all coursework for her doctorate degree in human
development and family science. She has completed extensive training workshops related to
occupational therapy. Wavrek provided occupational therapy to the minor plaintiff beginning
when he was 18 months old, including before and after the time he was enrolled at Oakstone
Academy. The Court finds that Barbara Wavrek is well qualified as an expert in occupational
therapy.
As to Defendants’ complaints about the methodology employed by Professor Audet and
Expert Wavrek, those complaints go to the weight of their testimony as opposed to its
admissibility. Defendants contend that there are a number of medical explanations for the minor
plaintiff’s behavior other than those opined by Professor Audet and Expert Wavrek. However,
“[i]n order to be admissible on the issue of causation, an expert’s testimony need not eliminate
all other possible causes of the injury.” Jahn v. Equine Services, PSC, 233 F.3d 382, 390 (6th
Cir. 2000). “The fact that several possible causes might remain ‘uneliminated’ . . . only goes to
the accuracy of the conclusion, not to the soundness of the methodology.” Id. (citation omitted).
Plaintiffs, as the proponents of the testimony, do not have the burden of proving that it is
scientifically correct, but that by a preponderance of the evidence, it is reliable. Here, the Court
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finds that the methodology underlying these experts’ testimony is reliable.
All of Defendants’ complaints are more properly dealt with by “[v]igorous
cross-examination, presentation of contrary evidence, and careful instruction on the burden of
proof[.]” Daubert, 509 U.S. at 596. This Court’s role is simply to keep unreliable and irrelevant
information from the jury because of its inability to assist in factual determinations. The Court
finds that both Professor Audet’s and Expert Wavrek’s proposed testimony is relevant and
reliable and will certainly be helpful to the jury.
IV. Conclusion
Based on the foregoing, the Court DENIES Defendants’ Daubert Motion. (ECF No.
102.) As with all in limine decisions, this ruling is subject to modification should the facts or
circumstances at trial differ from that which has been presented in the pre-trial motion and
memorandum in opposition to that motion.
IT IS SO ORDERED.
/s/ Gregory L. Frost
GREGORY L. FROST
UNITED STATES DISTRICT JUDGE
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