Doe et al v. Aberdeen School District et al
Filing
144
MEMORANDUM AND ORDER granting 71 Motion to Exclude EXPERT TESTIMONY. Signed by U.S. District Judge Charles B. Kornmann on 10/1/21. (SKK)
HLED
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
NORTHERN DIVISION
JANE DOE,INDIVIDUALLY AND ON
BEHALF OF THEIR MINOR CHILD,
A.A.; JOHN DOE,INDIVIDUALLY AND
ON BEHALF OF THEIR MINOR CHILD,
A.A.; JESSICA DOE,INDIVIDUALLY
OCT 0 I 2021
I:18-CV-01025-CBK
AND ON BEHALF OF THEIR MINOR
CHILD,B.B.; JILL DOE,INDIVIDUALLY
AND ON BEHALF OF THEIR MINOR
CHILD, C.C.; JEFF DOE,INDIVIDUALLY
AND ON BEHALF OF THEIR MINOR
CHILD, C.C.; JANET DOE,
INDIVIDUALLY AND ON BEHALF OF
HER MINOR CHILD, D.D.; AND JULIE
DOE,INDIVIDUALLY AND ON BEHALF
OF HER MINOR CHILD, E.E.,
Plaintiffs,
vs.
ABERDEEN SCHOOL DISTRICT,
BECKY GUFFIN,IN HER INDIVIDUAL
CAPACITY; CAMILLE KAUL,IN HER
INDIVIDUAL CAPACITY; RENAE
RAUSCH,IN HER INDIVIDUAL
CAPACITY; COLLEEN MURLEY,IN
HER INDIVIDUAL CAPACITY;
MICHAEL NEUBERT,IN HIS
INDIVIDUAL CAPACITY; CARRIE
WIESENBURGER,IN HER INDIVIDUAL
CAPACITY; AND DOES 1-2,
Defendants.
MEMORANDUM AND ORDER
1.
BACKGROUND
This matter is before the Court on defendants' Aberdeen School District, Becky
Guffin, Camille Kaul, Renae Rausch, Colleen Murley, Michael Neubert, and Carrie
Weisenburgers'("defendants") motion to exclude expert testimony by Ms. Been
McMahon. Doc. 71. Defendants filed their motion on May 5, 2021, which plaintiffs
responded to on May 27, 2021. Doc. 109. With defendants' reply filed on June 9, 2021,
the motion is ripe for adjudication. Doc. 121.
Ms. Deena McMahon is a Minnesota-licensed independent clinical social worker.
On behalf of the plaintiffs, Ms. McMahon drafted five separate reports on each of the
minor children, detailing alleged trauma, providing medical determinations, providing
recommendations for continuity of treatment, and other comments seemingly outside the
purview of a licensed social worker. Ms. McMahon has no formal education in medicine
or education. Her curriculum vitae emphasizes her background as an expert witness "in
hundreds of child protection and permanency cases." Doc. 114-34 at 1. She admits she
has limited background working with children who have special needs, with her extent
being "hav[ing] done sex ed for special ed students. McMahon deposition, doc. 73-1 at
106.
In their briefing, plaintiffs appear to dramatically scale back the extent of what
Ms. McMahon is being offered to testify about; instead of being called to testify about
her medical conclusions that she makes across her reports, plaintiffs claim "Ms.
McMahon's expert testimony will address the harm the children and parents experienced
as a result of alleged violations of their rights." Plaintiffs Memorandum in
Opposition to Defendants' Motions to Exclude Expert Testimony, doc. 109 at 2.
The Court understands this to mean Ms. McMahon is not being offered to testify about
concluding there was abuse by defendants or that any alleged abuse caused a regression
of minor plaintiffs' education or decline in health. Rather, Ms. McMahon is being
offered for the more narrow question of to what extent could plaintiffs have been harmed.
ifthey can prove there was alleged abuse on the part of defendants, which would be of
import upon a finding of liability for the appropriateness of damages.
Defendants' motion rests on two grounds:(1)that MS. McMahon is not qualified
to testify in this case; and(2)that her opinions are unreliable and lack foundation,
specifically that she did not apply an appropriate methodology in making her
conclusions. Doc. 72 at 7-12. Because the Court finds defendants' first argument
succeeds on the merits, it does not proceed to analyze their second grounds for excluding
Ms. McMahon's testimony.
II.
DISCUSSION
A. Legal Standard
Pursuant to Federal Rules of Evidence 702:
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 offact 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.
It is plaintiffs' responsibility to "show by a preponderance ofthe evidence both that the
expertise qualified to render the opinion and that the methodology underlying [her]
conclusions is scientifically valid.'" In re Wholesale Grocerv Prods. Antitrust Litig.. 946
F.3d 995, 1000(8th Cir. 2019){quoting Marmo v. Tvson Fresh Meats. Inc.. 457 F.3d
748, 757-58 (8th Cir. 2006)). Admissibility for expert opinion testimony under Rule
702's "screening requirement" "'boil[s] down to a three-part test.'" In re Bair Hugger
Forced Air Warming Devices Prods. Liab. Litig.. 9 F.4f 768, 777(8th Cir. 2021){quoting
Johnson v. Mead Johnson & Co.. LLC.754 F.3d 557, 561 (2014)). These three parts are:
(1)that the testimony is "useful to the finder offact in deciding the ultimate issue of fact,
meaning it must be relevant;"(2)that the expert is ''qualified to assist the finder of fact;"
and(3)"whether [pjlaintiffs' experts' proposed testimony meets Rule 702's reliability
requirement." Id.(emphasis added){citing Johnson. 754 F.3d at 561).
When assessing qualifications, "it is the responsibility ofthe trial judge to
determine whether a particular expert has sufficient specialized knowledge to assist jurors
in deciding the specific issues in the case." Wheeling Pittsburgh Steel Corp. v. Beelman
River Terminals. Inc.. 254 F.3d 706,715 (8th Cir. 2001). The crux of defendants' motion
centers on the second prong: whether Ms. McMahon is qualified to assist the finder of
fact in this instance.
B. Whether McMahon is Qualified to Testify on Harm to Minor Plaintiffs as Result
of Alleged Abusive Educational Environment
In their Response to defendants' motion to exclude Ms. McMahon's testimony,
plaintiffs now state their proposed expert will only testify to "the harm to the minor
Plaintiffs [and parents] as a result of the abusive education environment at May Overby."
Plaintiffs Memorandum in Opposition to Defendants' Motions to Exclude
Expert Testimony, doc. 109 at 1. Plaintiffs now agree that Ms. McMahon is not
qualified to "render an opinion on the medical conditions of the children or the education
standards to be applied to education professionals." Id. at 2. If this is the case, then the
Court accepts that Ms. McMahon is not being offered to testify on the critical aspects of
her report that delve into medical diagnoses on shortened lifespans of minor plaintiffs,
how the alleged abuse has or will alter their educational attainment, and other conclusions
that stray beyond a social worker commenting on harmful consequences of alleged
trauma. Instead, to the extent the Court can understand the utility of Ms. McMahon's
remaining testimony, she is being offered by plaintiffs to testify on the level of harm
incurred on plaintiffs if in fact defendants are liable.
Plaintiffs seek to introduce Ms. McMahon as a qualified expert witness because of
her specialized knowledge that will assist the trier offact in understanding the after
effects of alleged harm in school. She is not testifying based on her scientific opinion
due to Ms. McMahon not having a degree within education or medicine, or other formal
training on these specific matters.
While Ms. McMahon has experience as a Minnesota-Licensed Independent Social
Worker, her background does not warrant her admission as a qualified expert under these
4
circumstances. First, Ms. McMahon has almost no background with special education
students. Instead, her experience within this complex cohort of educational standards and
differing consequences stemming from possible abuse only extends to "hav[ing] done sex
ed for special ed students." McMahon deposition, doc. 73-1 at 106.' This is a far cry
from assessing the harm caused to this vulnerable subset ofstudents from purported
trauma and abuse.
Second, defendants raise valid points of concern about Ms. McMahon venturing
beyond the confines of her social work background to opine on medical conclusions, such
as the specific cause for any alleged trauma and potential diminished life expectancies of
students. It appears that plaintiffs now argue they are not utilizing Ms. McMahon to
testify about the core of her reports, specifically that defendants' alleged actions did
cause trauma, prognosis on missed educational opportunities because of alleged trauma,
her medical recommendations that these students should pursue different sorts of therapy,
whether May Overby constituted an abusive environment, whether students are
depressed, and asserting - without any medical training - that D.D. will suffer a
"shortened [] life span," D.D.Trauma Assessment and Case Review, doc. 73-5 at 8,^
among other assertions beyond her realm of qualifications.
McMahon deposition,
doc. 73-1; A.A. Trauma Assessment AND Case Review, doc. 73-2; B.B. Trauma
Assessment and Case Review, doc. 73-3; C.C. Trauma Assessment and Case
Review, doc. 73-4; id; E.E. Trauma Assessment and Case Review, doc. 73-6.^
Shockingly, after making such a bold medical opinion about the likely shortened lifespan
of one of the minor plaintiffs because of his time at May Overy, Ms. McMahon fails to
even cite to any authority for such a proposition.
D.D.Trauma Assessment and
Case Review, doc. 73-5 at 8.
Because plaintiffs fail to substantiate what Ms. McMahon will testify to besides
"the harm the Plaintiffs experienced and how that harm manifests in children, and
'This deposition was filed under seal because the names of minor plaintiffs are revealed in the transcript.
^ This report is also filed under seal because the name of D.D. is revealed.
^ The reports for A.A., B.B., C.C., and E.E. are also filed under seal because their names are revealed.
manifested in the minor Plaintiffs," the Court strains to discern what she seeks to present
at a trial. Plaintiffs Memorandum in Opposition to Defendants' Motions to
Exclude Expert Testimony, doc. 109 at 4. But under the "liberal thrust" for expert
testimony within our federal courts, the Court analyzes plaintiffs' proposed expert
witness within the confines of the extent of harm by alleged abuse, which may be useful
to the factfmder for any possible award of damages. In re Bair Hugger Forced Air
Warming Devices Prods. Liab. Litig.. 9 F.4f 768,777(8th Cir. 2021).
Finally, only looking at Ms. McMahon's reports strictly within the confines of
examining the scope of any alleged harm to the minor plaintiffs, the Court still does not
find her adequately qualified. While Ms. McMahon's CV indicates her forty past court
appearances, doc. 114-34, she does not substantively explain the extent of the varying
expert opinions she provided. Further, as the Court has previously explained, these
children are especially vulnerable due to their varying disabilities and inhibition to
verbalize the extent of any alleged harm or abuse, differentiating them fi-om other schoolaged children. ^Memorandum and Order Granting in Part,Denying in Part,
Defendants' Motions for Summary Judgment, doc. 143. Because Ms. McMahon
does not have adequate specialized knowledge in dealing with special education students,
beyond sexual education on several prior occasions, McMahon deposition, doc. 73-1 at
106, her qualifications are not adequate in this instance. Perhaps Ms. McMahon could
ably provide relevant expert testimony on the extent of harm to allegedly abused children
who do not have such disabilities. Here,"[t]he real question is, what is [she] an expert
about?" Wheeling Pittsburgh Steel Corp. v. Beelman River Terminals. Inc., 254 F.3d
706, 715(8th Cir. 2001). Ms. McMahon's background does not provide the needed
qualifications for her to tackle the nuances oftrauma on these especially vulnerable
children; any proposed expert must offer specialized knowledge within the parameters of
special education students, even within the restricted confines plaintiffs now claim to
utilize their proposed expert.
Ms. McMcahon does not have significant experiences working with special
education students and does not have relevant medical or educational training that
6
provide the needed qualifications to assess the extent ofthe harm these minor plaintiffs
endured from the alleged abuse.
Because the Court finds the proposed expert is not qualified to testify in this
matter, defendants' second argument asserting Ms. McMahon's opinions are unreliable
and lack a foundation are moot.
III.
CONCLUSION
While Ms. McMahon no doubt is an expert on other issues surrounding childhood
trauma, she is not qualified to provide expert testimony in this instance. She holds only
minimal background working with children who require special education services.
These minor plaintiffs, who constitute "some of the most vulnerable members of
society," present stark differences than the children Ms. McMahon regularly works with.
Memorandum and Order Granting in Part,Denying in Part,Defendants'
Motions for Summary Judgment, doc. 143 at 35. Because she does not hold
substantive experience treating and working with children within the special education
ambit, Ms. McMahon cannot testify as an expert witness for the extent of harm minor
plaintiffs may have endured at the hands of defendants.
IT IS HEREBY ORDERED that defendants' motion to exclude expert testimony,
doc. 71, is granted.
day
■is /^< of October, 2021.
DATED this /
BY THE COURT:
CHARLES B. KORNMANN
United States District Judge
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