BETHLEHEM AREA SCHOOL DISTRICT v. ZHOU

Filing 162

MEMORANDUM AND/OR OPINION RE: DEFT'S MOTION IN LIMINE TO PRECLUDE PLAINTIFF'S EXPERT REPORT (DOC. #128). SIGNED BY HONORABLE J. WILLIAM DITTER, JR ON 7/25/2012; 7/26/2012 ENTERED AND COPIES MAILED TO PRO SE, E-MAILED.(tomg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

BETHLEHEM AREA SCHOOL DISTRICT,
v.
DIANA ZHOU,

:
:
:
:
:

CIVIL ACTION

NO. 09-CV-03493

MEMORANDUM
Ditter, J.

July 25, 2012

Defendant, Diana Zhou, filed a motion in limine to preclude the Bethlehem Area School
District from calling its expert, Andrew M. Klein, and from using his revised report. I
previously granted Zhou’s motion in limine to prevent consideration of Mr. Klein’s expert report
and expert testimony at the summary judgment stage. See September 27, 2011 opinion and order
(Dkt. Nos. 104 and 105) . I found that Mr. Klein improperly provided legal conclusions and
opinions regarding Zhou’s intent, but held that the District could nonetheless call Mr. Klein as an
expert to testify to the IDEA processes and Ms. Zhou’s use thereof if the District complied with
my opinion and order.
This memorandum is filed to explain the reasons for my order of July 24, 2012, granting
in part and denying in part Zhou’s motion in limine. Because Mr. Klein’s revised report does not
meet the standards set forth for expert testimony, the District will not be permitted to admit his
revised report or to call him as an expert witness, but Mr. Klein will be permitted to testify as a
fact witness.
I. Standard For Expert Testimony
A witness may testify as an expert only where: “(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. “The expert must base his testimony on properly grounded, well-reasoned and
non-speculative evidence.” Engers v. AT&T, No. 98cv3660, 2005 U.S. Dist. LEXIS 41693, *4
(D.N.J. Aug. 10, 2005) (citing Fed. R. Evid. 702 Advisory Committee Note (2000)).
To be reliable, the testimony “must be based on the ‘methods and procedures of science’
rather than on ‘subjective belief or unsupported speculation’; the expert must have ‘good
grounds’ for his or her belief.” Calhoun v. Yamaha Motor Corp., U.S.A., 350 F.3d 316, 321 (3d
Cir. 2003). To determine whether testimony is reliable, the Third Circuit has provided a list of
relevant factors to consider:
(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.
Id. at 321.
The District, as the proponent of the expert, has the burden of establishing the
admissibility of Mr. Klein’s testimony by a preponderance of the evidence. Padillas v.
Stork-Gamco, Inc., 186 F.3d 412, 417-18 (3d Cir. 1999); see also, Fed. R. Evid. 702 Advisory
Committee Note (2000).
II. Original and Revised Expert Reports
I rejected Mr. Klein’s initial report. I found that he was retained for the improper purpose
of providing a legal opinion, that he provided such legal opinions, and that he offered
impermissible opinions on Zhou’s intent. The District has since provided a revised report dated
2

June 18, 2012 and Mr. Klein has been deposed on the content of that report.
Mr. Klein stated that in revising his report, he reviewed my September 2011 order and
opinion and edited his prior report to conform to that order and opinion. He also reviewed the
deposition transcript of Cynthia Leshinsky, the District’s Special Education Supervisor. In
addition, he performed “some research” to support the new paragraph on page ten of his revised
report addressing the “industry norm” and corrected errors of math and verb tense. Klein Tr. at
289-90, 311-12.
III. The“Industry Norm”
In rejecting Mr. Klein’s original report, I specifically noted that he “fail[ed] to explain the
‘industry norm’” and failed “to articulate the relevant standards or their sources.” Although Mr.
Klein again fails to define the “industry norm” in his report, he testified that the industry to
which he is referring is the “[s]pecial education industry of issuing IEPs and NOREPs and
NORAs.” Klein Tr. at 292.
Mr. Klein added a single paragraph to his revised report discussing this industry norm. It
reads as follows:
Using Pennsylvania as an example, for the 2010-2011 School Year, 740 hearings
were requested (excluding Section 504 requests but including gifted). It is safe to
assume all of these matters began with a disapproved NOREP. With a total of
270,000 children holding IEP’s in the Commonwealth, this translates to 0.27% of
parents requesting hearings during the last school year. Conversely, 99.73% of
families reached agreement with their school districts via an approved NOREP. If
one adds in the additional 70,000 Mentally Gifted children with GIEP’s [sic] in
the Commonwealth, the disapproval rate drops to 0.22% or a 99.78% approval
rate. Recognizing the reality that parents disapprove NOREP’s [sic] and NORA’s
[sic] and then go on to resolve their disagreements with the school district would
not, by any stretch of the imagination, lower the acceptance below the ninetieth
percentile.

3

Klein Revised Report at 10.
Mr. Klein testified that he calculated the industry norm by dividing the total number of
special education and gifted hearings requested in Pennsylvania in the 2010-2011 academic year–
740 – by the number of children with IEPs or who were eligible for gifted services that year –
340,000. He therefore found the industry norm “approval rate” to be 99.78 percent.
Just as in his original report, Mr. Klein found that Zhou had filed requests for fourteen
due process hearing, four mediations, and two OCR complaints. He stated that Zhou had
approved only six NOREPs or NORAs1 of the thirty proffered by the District, and only four were
approved “without annotations.” He calculated Zhou’s approval rate by dividing the number of
NOREPs or NORAs that were offered to her by the District for both children, including her nonIDEA eligible child – 30 – by the number of NOREPs or NORAs that he found Zhou had
approved– 4 – or approved “without annotation” – total of 6. He opined that Zhou’s 13 percent
(4 approvals out of 30) or at best 20 percent (6 approvals out of 30) approval rate was far below
the “‘industry norm’ of approvals in the ninety percentiles.” Klein Revised Report at 10.
A. “Industry Norm” Is Not Supported By Sufficient Data or a Reliable Method
Zhou challenges the reliability of Mr. Klein’s opinions. I find that Mr. Klein’s testimony
in support of the industry norm and his revised report fall far short of meeting the requirements
for expert testimony. There are substantial and obvious problems with both the information
proffered and the methodology utilized by Mr. Klein.

1

NOREP stands for Notice of Recommended Educational Placement and NORA stands
for Notice of Recommended Assignment.
4

1. Facts and Data Are Not Sufficient
Mr. Klein testified that he doesn’t know “that there is any way of determining an industry
norm.” Klein Tr. at 325. He stated that he could not cite to any studies regarding the industry
norm of IDEA proceedings and that he had not seen any data to support approval rates in the
ninetieth percentile. Id. at 325-27.
In addition, Mr. Klein failed to explain why Pennsylvania and the 2010-2011 academic
year are appropriate models of the industry as a whole. He testified that he “could not find any
hearing data nationally for 2010-11.” Klein Tr. at 316. He also neglects to identify the source of
his data in his report, although he stated that he consulted the Office of Dispute Resolution
annual report for 2010-2011 and the Pennsylvania Department of Education and Bureau of
Special Education websites. Id. at 318-19. Although the report states that the 740 hearings
include “gifted,” he testified that he thought there was one gifted hearing so the total number
should be 741. Id. at 322.
Furthermore, Mr. Klein stated that the 270,000 children is a rounded off number, but did
not provide the actual number of children or explain why he did not use the actual number in
calculating the approval percentage. Id. at 313-14. Although Mr. Klein attributes all of the 740
hearing requests to parents, he testified that he did not know whether these hearings were
requested by parents or school districts. He didn’t know if the requests were made by separate
sets of parents or represented multiple requests by the same parents, despite recognizing that such
data was available. Id. at 339. He also did not inquire about data relating to hearing requests
made by the same parents in prior years, as is the case here. Id. at 340.
Mr. Klein’s report resorts to stretching one’s imagination because, as he concedes, he has
5

no data to support his belief that the industry norm is a 90 plus percentage approval rating over
time. Id. at 345-46. He testified that in some cases where a parent requests a hearing because he
or she disapproves of the NOREP or NORA, the case is resolved before the hearing is conducted.
However, he never explained how resolution prior to a hearing influences the approval rate that
he defines as the industry standard. Indeed, he testified that “we don’t have numbers” reflecting
these resolutions, and he couldn’t match his estimates – which he based on his seventeen-year
experience as a hearing officer from1986 to 2003 and only on those hearings over which he
presided (approximately 5% of the cases in Pennsylvania) – with the available federal data. Id. at
315-16.
2. Methodology and Application of the Industry Norm Is Not Reliable
There are additional problems with Mr. Klein’s methodology and application of the
“industry norm.” He conceded that he has no expertise in statistics and has never used the
methodology he described to determine the industry norm for IDEA proceedings anywhere else
other than in this report. Id. at 327-28.
In addition, he acknowledged faults in applying his methodology. He testified that the
information he used to calculate Zhou’s at-best twenty percent approval rate was not comparable
to the information he used to arrive at the industry norm, but he had “to have something to go
with.” He stated that he looked at Zhou over the course of ten years, including her two children
and both gifted and IDEA hearings but that he had no information in his report looking at the
behavior of parents across time and accounting for number of children and both IDEA and gifted
hearings. Id. at 341.
In addition, he recognized that if parents disagreed with a single NORA or NOREP, they
6

would be outside the industry norm for the year in which they disagreed. He testified that Zhou
was within the industry norm in any particular year where she did not request a hearing (Kelin Tr.
at 350-51), and that the District, in requesting at least four, and possibly five, hearings was
outside the norm. Id. at 419.
IV. Impermissible Opinion on Zhou’s Intent
Mr. Klein’s initial report was rejected because he set forth opinions on Zhou’s intent.
Although Mr. Klein did strike some references to Zhou’s intent, he left others, including those I
said I would not allow. For example, the revised report offers an opinion on Zhou’s “ultimate
motivation and demand” which Mr. Klein defines as “a demand that the school district place both
of her children at the Moravian Academy, a non-public school within Northampton County.”
He conceded this was an opinion as to Zhou’s motivation despite repeatedly acknowledging that
I had made it clear that he was not to provide such an opinion.
In addition, defying credibility and logic, if not my previous order, he testified that his
initial opinion regarding Zhou’s intent was based on the now excluded deposition testimony of
mediator William Haussmann, but the very same opinion using identical language in the revised
report is no longer based on Mr. Haussmann’s deposition. Tr. 393-94.
Mr. Klein’s revised report thus continues to proffer impermissible opinions regarding
Zhou’s intent and will not be admitted.
V. Conclusion
I recognize that “the rejection of expert testimony is the exception rather than the rule.”
Fed. R. Evid. 702 Advisory Committee Note (2000). Nonetheless, an expert must base his
testimony on sufficient facts and data and utilize a reliable methodology. Mr. Klein’s revised
7

expert report and his testimony supporting that report do not meet these requirements. Zhou’s
motion in limine to preclude the District from admitting Mr. Klein’s revised expert report and
from calling Mr. Klein to testify as an expert at trial is therefore granted.
However, Mr. Klein may be called as a fact witness and may testify to his knowledge of
the IDEA processes based on his experience as a hearing officer and special education
administrator. He may not, however, offer an opinion pursuant to Federal Rule of Evidence 702
or provide any testimony regarding the “industry norm” or “approval ratings.”
This memorandum is filed to explain the reasons for my order of July 24, 2012, granting
in part and denying in part Zhou’s motion in limine to preclude the District’s expert.

BY THE COURT:

/s/ J. William Ditter, Jr.
J. WILLIAM DITTER, JR., J

8