Roe v. Patterson et al

Filing 227

MEMORANDUM OPINION AND ORDER granting 122 MOTION to Strike Expert Report and Exclude Testimony of Edward F. Dragan filed by Jane Roe; granting 123 MOTION to Strike Expert Report and Exclude Testimony of James McNamara fi led by Jane Roe. It is hereby ORDERED that Dr. Edward Dragan's report is STRICKEN and his testimony will be EXCLUDED, and James McNamara's report is likewise STRICKEN, and his testimony also will be EXCLUDED. Signed by District Judge Sean D. Jordan on 3/31/2022. (daj, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
JANE ROE
v.
LEIGHTON PAIGE PATTERSON,
ET AL.

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§ CIVIL NO. 4:19-CV-179-SDJ
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§
§

MEMORANDUM OPINION AND ORDER
Plaintiff Jane Roe sued Defendants Southwestern Baptist Theological
Seminary (“SWBTS”) and the former SWBTS president, Leighton Paige Patterson,
for various causes of action related to alleged sexual assaults suffered by Roe while
she attended SWBTS and the alleged actions Defendants took in response to Roe’s
report of the assaults. Now before the Court are Roe’s motions to strike experts
designated by SWBTS and cross-designated by Patterson. (Dkt. #122, #123). The
Court, having reviewed the motions, the relevant briefing, and the applicable law,
GRANTS the motions.
I. BACKGROUND
Roe has asserted claims against SWBTS and Patterson for negligence, alleging
that they failed to act reasonably to prevent the alleged sexual assaults she suffered
as a student-employee at SWBTS at the hands of another SWBTS student-employee,
John Doe. SWBTS timely designated two experts to testify in this case. Dr. Edward
F. Dragan, who has been designated as a “school liability expert” by SWBTS, opines
that SWBTS met the “professional standard of care” to develop appropriate sexual
harassment policies for its students and employees, responded in a timely manner to
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Roe’s allegations of sexual assault, and maintained admissions procedures as to
incoming students that were consistent with other colleges and universities. (Dkt.
#117). James J. McNamara, who has been designated a “criminology, risk of violence
predictions, and foreseeability expert” by SWBTS, opines that, based on the totality
of the circumstances in this case, “the alleged crimes committed against [Roe] were
not reasonably foreseeable to [SWBTS].” (Dkt. #130-1). Patterson subsequently crossdesignated both experts. In her motions, Roe urges the Court to strike the reports of
these experts and exclude their testimony under Federal Rules of Evidence 702 and
403.
II. LEGAL STANDARD
A. Federal Rules of Evidence 702 and 403
Federal Rule of Evidence 702 provides for the admission of expert testimony if
such testimony “will help the trier of fact to understand the evidence or to determine
a fact in issue.” FED. R. EVID. 702(a). In Daubert v. Merrell Dow Pharmaceuticals,
Inc., the Supreme Court instructed courts to function as gatekeepers and determine
whether expert testimony should be presented to the jury. 509 U.S. 579, 590–93, 113
S.Ct. 2786, 125 L.Ed.2d 469 (1993). Courts act as gatekeepers of expert testimony “to
make certain 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 relevant field.” Kumho Tire Co. v.
Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) (1999).
The party offering expert testimony has the burden to prove by a
preponderance of the evidence that (1) the expert is qualified, (2) the testimony is
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relevant to an issue in the case, and (3) the testimony is reliable. Sims v. Kia Motors
of Am., Inc., 839 F.3d 393, 400 (5th Cir. 2016); Daubert, 509 U.S. at 590–91. A
proffered expert witness is qualified to testify by virtue of his or her “knowledge, skill,
experience, training, or education.” FED. R. EVID. 702. And to be admissible, expert
testimony must be “not only relevant, but reliable.” Daubert, 509 U.S. at 589. “This
gate-keeping obligation applies to all types of expert testimony, not just scientific
testimony.” Pipitone

v.

Biomatrix,

Inc., 288

F.3d

239,

244

(5th

Cir.

2002) (citing Kumho, 526 U.S. at 147).
It is also well established that an expert may not render conclusions of
law. See, e.g., Goodman v. Harris County, 571 F.3d 388, 399 (5th Cir. 2009) (“[A]n
expert may never render conclusions of law.”); Snap–Drape, Inc. v. C.I.R., 98 F.3d
194, 198 (5th Cir. 1996) (same); Owen v. Kerr–McGee Corp., 698 F.2d 236, 240 (5th
Cir. 1983) (“[A]llowing an expert to give his opinion on the legal conclusions to be
drawn from the evidence both invades the court’s province and is irrelevant.”).
Instead, “our legal system reserves to the trial judge the role of deciding the law for
the benefit of the jury.” Askanase v. Fatjo, 130 F.3d 657, 673 (5th Cir. 1997). As the
Fifth Circuit has explained, allowing experts to provide legal conclusions would be
harmful to the jury:
First, the jury would be very susceptible to adopting the expert’s
conclusion rather [than] making its own decision. There is a certain
mystique about the word “expert” and once the jury hears of the
attorney’s experience and expertise, it might think the witness even
more reliable than the judge. Second, if an expert witness were allowed
to testify to legal questions, each party would find an expert who would

3

state the law in the light most favorable to its position. Such differing
opinions as to what the law is would only confuse the jury.
Id. (citation omitted).
Similarly, “[a]n expert cannot ‘merely tell the jury what result to reach.’”
Greger v. C.R. Bard, Inc., No. 4:19-CV-675-SDJ, 2021 WL 3855474, at *10 (E.D. Tex.
Aug. 30, 2021) (quoting Salas v. Carpenter, 980 F.2d 299, 305 n.4 (5th Cir. 1992)).
Such testimony will not assist the trier of fact in either understanding the evidence
or determining a fact in issue. See FED. R. EVID. 702(a).
Under Rule 403, the court “may exclude relevant evidence if its probative value
is substantially outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence.” FED. R. EVID. 403.
B. Texas Law of Negligence
Under Texas law, which governs the underlying claims in this diversity case,
the elements of Roe’s negligence causes of action are the existence of a duty, a breach
of that duty, and damages proximately caused by the breach of duty. Doe v. Boys
Clubs of Greater Dall., Inc., 907 S.W.2d 472, 477 (Tex. 1995). The “threshold inquiry
in a negligence case is duty,” and Roe must establish “both the existence and the
violation of a duty owed to [her] by [Defendants].” Greater Hous. Transp. Co. v.
Phillips, 801 S.W.2d 523, 525 (Tex. 1990). The general duty or standard of care
applicable in a negligence case is “to act as a reasonably prudent person would act
under the same or similar circumstances[.]” Colvin v. Red Steel Co., 682 S.W.2d 243,
245 (Tex. 1984) (citation omitted).
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Proximate cause consists of two elements: cause in fact and foreseeability. Boys
Clubs of Greater Dall., 907 S.W.2d at 477. The test for cause in fact is whether the
negligent “act or omission was a substantial factor in bringing about injury, without
which the harm would not have occurred.” Id. (quotation omitted). Foreseeability,
which is relevant both to whether a duty exists and as an element of proximate cause,
“requires that a person of ordinary intelligence should have anticipated the danger
created by a negligent act or omission.” Id. at 478; Phillips, 801 S.W.2d at 525.
III. DISCUSSION
A. Dr. Dragan’s Testimony is Inadmissible under Federal Rules of
Evidence 702 and 403.
Invoking Rules 702 and 403, Roe moves to strike the testimony and report of
Dr. Dragan. Roe asserts that Dr. Dragan’s report contains inadmissible conclusions
of law and application of law to the evidence in this case, which invade both the role
of the judge and the jury. Roe also contends that Dr. Dragan’s opinions are
inadmissible under Federal Rule of Evidence 403 because they are prejudicial,
confusing, misleading, and cumulative. The Court agrees and concludes that Dr.
Dragan’s report should be stricken and his testimony should be excluded.
i.

Dr. Dragan’s proposed expert testimony on the “standard of care”
will not assist the jury under Federal Rule of Evidence 702.
Dr. Dragan describes his assignment in this case as involving a review of the

record materials provided to him in order to render an opinion as to whether SWBTS
“met the standard of care for a religious institution of higher education to maintain a
learning environment that is free from sexual harassment and assault for its
students,” including Roe. (Dkt. #117 at 1). Dragan goes on to opine that SWBTS “met
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the standard of care for the development and implementation of its sexual
harassment policy and its admissions procedures relative to determining past
criminal conduct of prospective students.” (Dkt. #117 at 12).
The proposed expert testimony offered by Dragan fails at the outset because
such testimony generally is not appropriate to establish the standard of care for a
normal negligence case under Texas law. Instead, “[e]xpert testimony is necessary
only when the alleged negligence is of such a nature as not to be within the experience
of the layman.” FFE Transp. Services, Inc. v. Fulgham, 154 S.W.3d 84, 90–91 (Tex.
2004) (quotation omitted) (citing, as examples of when expert testimony is necessary,
cases involving the diagnosis of skull fractures, inspection and repair of aircraft
engine, and operation of an aircraft and aerial application of herbicide).
To determine whether expert testimony is necessary to establish the standard
of care, “Texas courts have considered whether the conduct at issue involves the use
of specialized equipment and techniques unfamiliar to the ordinary person.” Id. at
91. Typically, expert testimony regarding the standard of care is required only in
cases involving healthcare or other highly specialized fields. See, e.g., Pierson v.
United States, 605 F.App’x 293 (5th Cir. 2015) (per curiam) (noting that Texas law
generally requires expert testimony to establish the standard of care in a medical
malpractice case); Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 848, 850
(Tex. 2005) (discussing generally the necessity of medical expert testimony to
determine the standard of care in negligence cases dealing with the provision of

6

medical or health care services because the standard is that of “trained and
experienced medical professionals”).
The relevant question presented in this case is whether SWBTS and Patterson
met the “reasonably prudent person” standard applicable to negligence claims under
Texas law, given what they knew about Doe and his past, and whether SWBTS met
the standard of care to appropriately supervise Patterson and Doe. Neither of these
questions involve a highly specialized field or other technical issues that will be
outside the knowledge of the average juror. Thus, expert testimony on the standard
of care is inappropriate.
Moreover, Dr. Dragan’s conclusion that SWBTS met its “standard of care” is
an inadmissible legal conclusion. See Askanase, 130 F.3d at 673 (holding that an
expert opinion on whether individuals breached their fiduciary duties was an
inadmissible legal conclusion). In this regard, Dr. Dragan’s “reasons” for his opinion
that SWBTS met the standard of care are comprised of a summary of the evidence he
reviewed followed by his conclusions that SWBTS’s actions were “appropriate,”
“timely,” and “met the standard of care.” (Dkt. #117). In so doing, Dr. Dragan’s
proposed expert testimony plainly “invade[s] upon the purview of the court and
direct[s] the jury what result to reach, both of which are improper.” See Richards v.
Lufkin Indus., Inc., No. 9:14-CV-00136, 2017 WL 4320700, at *4 (E.D. Tex. Sept. 28,
2017).

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ii.

Dr. Dragan’s opinion is also inadmissible because it mistakenly
focuses only on background checks of incoming students, rather
than student employees like Doe. 1
Dr. Dragan’s opinion is also inadmissible because it would likely be confusing

to the jury on the issue of background checks. Dragan’s report concludes that
SWBTS’s “application process, which required self-disclosure of criminal activity and
did not require criminal background checks of prospective students . . . met the
standard of care[.]” (Dkt. #117 at 11). But Dragan’s report and the study he relies on
do not discuss the screening procedures in place for students who are also employees.
This is a critical distinction in this case. As Roe alleges in her complaint, it was in
part because of Doe’s job with SWBTS that he was able to have access to and
knowledge of the buildings on campus. He then used this knowledge and access to
effectuate his harassment and assaults of Roe. Beyond that, common sense dictates
that screening procedures applicable to employees of a college or university, including
student employees, will differ in kind to procedures for incoming students. Dragan
fails to even acknowledge, much less address, this distinction.
Because Dr. Dragan’s methodology and his corresponding conclusions are
premised in substantial part solely on the screening of students, rather than studentemployees, such conclusions are at best incomplete and at worst misleading and

The Court notes that Roe did not raise this argument in her briefing, but the Court
raises this issue as part of its gate-keeping function to “ensure the reliability and relevancy
of expert testimony.” Black v. Food Lion, Inc., 171 F.3d 308, 311 (5th Cir. 1999) (quoting
Kumho, 526 U.S. at 152).
1

8

confusing under the circumstances of this case. For this additional reason, and
because Dragan’s opinion is likely to confuse the jury, it is inadmissible.
B. McNamara’s Testimony is also Inadmissible.
Mr. McNamara describes his assignment in this case as follows: “I have been
asked to offer opinions as to the reasonable foreseeability of the alleged sexual
assaults of [Jane Roe] committed by [John Doe] at [SWBTS].” (Dkt. #130-1 at 1).
McNamara goes on to opine that, based on the “totality of [the] circumstances” in this
case, the “alleged crimes committed against [Jane Roe] were not reasonably
foreseeable to [SWBTS].” (Dkt. #130-1 at 12); see also (Dkt. #130-1 at 11) (McNamara
stating in the “Conclusion” of his report that “[i]t is my opinion that the sexual
assaults of [Jane Roe] were not reasonably foreseeable to SWBTS”). In short,
McNamara was specifically asked to provide, and has offered, an opinion directed
precisely at the question of whether the sexual assaults suffered by Roe were
“foreseeable” by SWBTS.
Roe moves to strike McNamara’s report and exclude his testimony on the
grounds that expert testimony on foreseeability is not appropriate in this case and
his proposed testimony would not help the jury; that his opinions fall outside his
skills, knowledge, and experience; and that his testimony will confuse the jury and
waste time. The Court agrees that McNamara’s report should be stricken and his
testimony should be excluded.
Expert testimony is not appropriate on the element of foreseeability in an
ordinary negligence case. Under Texas law, foreseeability “involves a practical
inquiry based on common experience applied to human conduct.” Boys Clubs of
9

Greater Dall., 907 S.W.2d at 478 (emphasis added and quotation omitted). As a court
in the Southern District of Texas recognized, “[f]ew courts have addressed the
admissibility of expert testimony on the foreseeability that a particular individual is
likely to commit sexual assault or abuse.” See John Doe I v. Roman Catholic Diocese
of Galveston-Houston, No. CIV. H-05-1047, 2007 WL 2817999, at *20 (S.D. Tex. Sept.
26, 2007) (Rosenthal, J.) (collecting out-of-state cases and noting that the cases cited
did not allow an expert to opine as to whether it was reasonably foreseeable that a
particular individual, who did not have a history of prior abuse of children, was likely
to abuse children in the future). Similarly, this Court is not aware of any Texas cases
allowing expert testimony on the issue of foreseeability for this type of negligence
claim. 2 The court in John Doe I went on to conclude that, “[w]hether the information
about [the assailant] made the risk of his sexual attacks reasonably foreseeable to
the [defendants] is a question committed by Texas law to the reasonable person
standard,” and therefore “expert conclusions . . . are neither relevant nor admissible
on this point.” Id. 2007 WL 2817999, at *21 (quotation omitted).
The same reasoning applies here. The question of whether or not the
information Defendants had about Doe made the risk of his sexual attacks on Roe

SWBTS cites premises-liability cases to support its argument that expert testimony
on foreseeability would be helpful here. But in a premises-liability action under Texas law, a
duty to protect a third-party from criminal acts only arises when “an unreasonable risk of
criminal conduct” is foreseeable to the landlord. Timberwalk Apartments, Partners, Inc. v.
Cain, 972 S.W.2d 749, 756 (Tex. 1998). Whether there is an “unreasonable risk of criminal
conduct” is a factor-based analysis that includes looking at other crimes within a certain
geographic area, the publicity afforded to those crimes, the characteristics of those crimes,
and the frequency and recency of those crimes. Id. at 756–57. This type of analysis does not
apply here. Thus, such cases are inapposite.
2

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foreseeable is controlled by Texas’s “reasonable person” standard and McNamara’s
proposed expert conclusions on this issue are irrelevant and inadmissible. See id. 3
For the foregoing reasons, the Court concludes that McNamara’s report shall
be stricken and his testimony shall be excluded as inadmissible. 4

.

IV. CONCLUSION

Plaintiff Jane Roe’s Motion to Strike Expert Report and Exclude Testimony of
Edward F. Dragan, (Dkt. #122), and Motion to Strike Expert Report and Exclude
Testimony of James J. McNamara, (Dkt. #123), are GRANTED.
Further, it is hereby ORDERED that Dr. Edward Dragan’s report is
STRICKEN and his testimony will be EXCLUDED, and James McNamara’s report
is likewise STRICKEN, and his testimony also will be EXCLUDED.
So ORDERED and SIGNED this 31st day of March, 2022.

____________________________________
SEAN D. JORDAN
UNITED STATES DISTRICT JUDGE

To the extent McNamara proposes to offer expert opinions concerning the “standard
of care” that are not inextricably intertwined with his inadmissible “foreseeability”
conclusions, such opinions are inadmissible at the outset for the same reason applicable to
Dr. Dragan’s similar opinion. See supra Part III.A.i. The negligence questions in this case do
not involve a highly specialized field or other technical issues that will be outside the
knowledge of the average juror. Thus, expert testimony on the standard of care is
inappropriate.
Additionally, the Court need not address Roe’s arguments regarding whether
McNamara is qualified to offer his opinions in this case because, in any event, his opinions
are inadmissible.
3

SWBTS also argues that Roe’s motions to strike should be denied because Roe has
not yet deposed either expert. The Court concludes that the cases relied on by SWBTS on this
point do not support this conclusion and rejects this argument as unpersuasive.
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