Marland et al v. Asplundh Tree Expert
MEMORANDUM DECISION AND ORDER denying Defendant's Corrected 74 Motion to Preclude Plaintiffs' Experts from Testifying at Trial that J.S.M. will be Unable to Study Science or Mathematics in College or Attend Graduate School. Signed by Judge Ted Stewart on 1/10/2017. (eat)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
SCOTT K. MARLAND and JENNIFER D.
MARLAND, as conservators for the minor
MEMORANDUM DECISION AND
ORDER DENYING DEFENDANT’S
CORRECTED MOTION TO PRECLUDE
PLAINTIFFS’ EXPERTS FROM
TESTIFYING AT TRIAL THAT J.S.M.
WILL BE UNABLE TO STUDY SCIENCE
OR MATHEMATICS IN COLLEGE OR
ATTEND GRADUATE SCHOOL
ASPLUNDH TREE EXPERT CO., a
Case No. 1:14-CV-40 TS
District Judge Ted Stewart
This matter is before the Court on Defendant Asplundh Tree Expert Co.’s Corrected
Motion to Preclude Plaintiffs’ Experts from Testifying at Trial that J.S.M. will be Unable to
Study Science or Mathematics in College or Attend Graduate School. For the reasons discussed
below, the Court will deny the Motion.
Defendant seeks to preclude specified testimony of three expert witnesses retained by
Plaintiffs to assess the lost future income of J.S.M.: Dr. Sam Goldstein, Ms. Dina Galli, and Mr.
Jeremy Sharp. Plaintiffs retained Dr. Goldstein, a board-certified neuropsychologist, to evaluate
J.S.M. Following the evaluation, Dr. Goldstein formed the following challenged opinions
regarding J.S.M.’s capability to attain secondary education degrees: First, though J.S.M. may
attend college, as a result of the accident at issue, he is not likely to major in areas related to
science or mathematics. Second, as a result of the accident, J.S.M. is unlikely to attend graduate
school in any area of study.
Plaintiffs also retained Ms. Galli, a rehabilitation counselor, to assess J.S.M.’s future
employability and earning capacity. In making this assessment, Ms. Galli relied on Dr.
Goldstein’s opinions regarding J.S.M.’s secondary education possibilities. Similarly, Mr. Sharp,
an economist, relied on Dr. Goldstein’s opinions in his calculations regarding the total economic
damages sustained by J.S.M.
Defendant argues that Dr. Goldstein’s opinions are unreliable and unhelpful to the jury,
and should therefore be precluded from trial in accordance with Rule 702 of the Federal Rules of
Evidence. Furthermore, Defendant seeks to preclude the testimonies of Ms. Galli and Mr. Sharp
so far as they rely on the specified opinions of Dr. Goldstein.
Federal Rule of Evidence 702 states:
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 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
Rule 702 imposes a gatekeeper obligation on the Court to “ensure that any and all
scientific testimony or evidence admitted is not only relevant, but reliable.” 1 The Court must
fulfill its gatekeeping duty by making specific findings on the record. 2 “Specifically, the court
must first determine whether an expert is qualified by knowledge, skill, experience, training, or
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993).
United States v. Yeley-Davis, 632 F.3d 673, 684 (10th Cir. 2011).
education to render an opinion.” 3 Second, the Court must determine whether the expert opinion
is both relevant and reliable. 4 “The inquiry envisioned by Rule 702 is . . . a flexible one” 5 and
“[t]he admission or exclusion of evidence lies within the sound discretion of the trial court and
cannot be reversed absent an abuse of discretion.” 6
Regarding the first inquiry, Defendant does not appear to challenge Dr. Goldstein’s
qualifications. Dr. Goldstein received a Ph.D. in School Psychology from the University of Utah
in 1980 and is certified as both a school psychologist and a pediatric neuropsychologist.
Additionally Dr. Goldstein has served on a number of editorial, professional, and charitable
boards, as well as authored a number of tests, articles, and texts in the field of neuropsychology. 7
The Court therefore finds that Dr. Goldstein is qualified to testify regarding his
neuropsychological evaluation of J.S.M. The primary issue for the Court in this matter is the
reliability and helpfulness of Dr. Goldstein’s proffered testimony.
RELIABILITY OF DR. GOLDSTEIN’S TESTIMONY
Defendant puts forth three arguments supporting its claim that Dr. Goldstein’s opinions
are not reliable: (1) Dr. Goldstein has pointed to no scientific literature, statistics, or other
evidence that supports his opinions that J.S.M. will not be able to study in the fields of
mathematics or science or that he will not be able to attend graduate school; (2) Dr. Goldstein’s
challenged opinions do not satisfy the requirement that medical opinions be expressed to a
Id. (quotation marks omitted).
Daubert, 509 U.S. at 589.
Id. at 594.
Wheeler v. John Deere Co., 935 F.2d 1090, 1099 (10th Cir.1991).
Docket No. 92 Ex. A.
“reasonable degree of medical certainty;” and (3) Dr. Goldstein’s assessment was completed
when J.S.M. was in second grade and fails to take into account J.S.M.’s significant improvement
from second to third grade. The Court will address each argument in turn.
First, the Court rejects the argument that Dr. Goldstein’s opinions are not supported by
the evidence. Although “[t]he proponent of expert testimony bears the burden of showing that
the testimony is admissible,” 8 they “need not prove that the expert is undisputably correct . . . .
Instead, [they] must show that the method employed by the expert in reaching the conclusion is
scientifically sound and that the opinion is based on facts which sufficiently satisfy Rule 702’s
reliability requirements.” 9 “[W]hen [an expert’s] conclusion simply does not follow from the
data, a district court is free to determine that an impermissible analytical gap exists between
premises and conclusion,” however, “asymptotic perfection” between data and conclusion is not
In conducting the neuropsychological assessment of J.S.M., Dr. Goldstein consulted
J.S.M.’s medical records, school records, and family history, conducted clinical interviews of
J.S.M., and employed approximately twenty tests and questionnaires. 11 Based on J.S.M.’s
Conroy v. Vilsack, 707 F.3d 1163, 1168 (10th Cir. 2013).
Bitler v. A.O. Smith Corp., 400 F.3d 1227, 1233 (10th Cir. 2005) (quoting Mitchell v.
Gencorp Inc., 165 F.3d 778, 781.
Id. at 1233–34.
The tests and questionnaires used by Dr. Goldstein include: Connors Comprehensive
Behavior Rating Scales; Home Situations Questionnaire; Social Attributes Checklist (parent and
teacher form); Comprehensive Executive Function Inventory (parent and teacher form); Teacher
Observation Checklist; Elementary School Situations Questionnaire; Cognitive Assessment
System; Peabody Picture Vocabulary Test; Expressive Vocabulary Test; Wechsler Intelligence
Scale for Children-IV (selected subtests); Test of Memory and Learning; Gordon Diagnostic
System; Purdue Pegboard; Developmental Test of Visual Motor Integration; Woodcock-Johnson
III Tests of Achievement; Reversals Frequency Test; Resiliency Scales for Children; Revised
detailed neuropsychological assessment, Dr. Goldstein testified that the following observations
contributed to his conclusions: First, upon reviewing the scores produced by J.S.M.’s
assessment, Dr. Goldstein found an uncharacteristic discrepancy in J.S.M.’s strengths and
weaknesses. 12 Specifically, Dr. Goldstein explained that J.S.M.’s demonstrated strengths, or
areas in which J.S.M. scored above average, were high indicators of success in specific areas
where J.S.M., in fact, demonstrated uncharacteristic weakness. 13 Dr. Goldstein further stated that
this discrepancy was particularly surprising when considering both of J.S.M.’s parents have
earned doctorate degrees and his older brother displays no signs of the same weaknesses or
discrepancies. 14 Dr. Goldstein also explained that while some of J.S.M.’s assessment scores were
consistent with people who receive a graduate degree, some were consistent with people who do
not earn beyond a bachelor’s degree, and others, particularly his “achievement” scores, were
consistent with people who do not attend any additional schooling beyond high school. 15
Notably, Defendant does not challenge the reliability of any of the methods employed or
data acquired in Dr. Goldstein’s assessment of J.S.M. Instead Defendant argues that Dr.
Goldstein’s challenged opinions “lack the necessary connection” to the data produced by the
assessment. 16 More specifically, Defendant maintains that Dr. Goldstein has not referenced any
specific data, literature, or other evidence that explains why the discrepancies and weaknesses
Children’s Manifest Anxiety Scale; Structured Interviewer for Post-Traumatic Stress disorder.
Docket No. 92 Ex. B, at 1−2.
Docket No. 74 Ex. 5, at 71−72
Id. Ex. 1, at 16.
Id. Ex. 5, at 95−96.
Docket No. 74, at 12.
demonstrated by J.S.M. lead to the conclusions that J.S.M. will not major in mathematics or
science and will not attend graduate school. The Court disagrees with Defendant’s assessment.
To reach the conclusions at issue, Dr. Goldstein applied the data collected through
J.S.M.’s assessment and his personal observations to his experience as a certified
neuropsychologist and school psychologist. The Court does not believe this creates an
“impermissible analytical gap.” To the extent there may be distance between data and
conclusion, “[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.” 17
Second, Dr. Goldstein’s remark that the challenged opinions are based on at least a 51
percent likelihood does not disqualify his testimony under Rule 702. “[W]e require an opining
physician to offer an opinion with a reasonable degree of medical certainty; a hunch, even an
educated hunch, is not enough.” 18 Dr. Goldstein’s opinions are based on a “reasonable degree of
neuropsychological probability,” 19 which he equates to between 51 and 90 percent certainty. 20
Defendant argues that 51 percent certainty does not reach the requisite “reasonable degree of
certainty.” In support of its argument, Defendant cites Valido-Shade v. Wyeth, 21 which holds that
Daubert, 509 U.S. at 596.
Warren v. Tastove, 240 F. App’x 771, 773 (10th Cir. 2007).
Docket No. 74, Ex. 1, at 16.
The exact level of confidence Dr. Goldstein has in his opinions is not clear, however in
his deposition he states that he made his conclusions “[w]ith an appreciation that you’re not
asking about a 90 percent probability, you’re asking about a standard of 51 percent probability,
with an understanding that if you really want to know what kids are going to be like at 16, you
wait until they’re 15 and a half.” Docket No. 74 Ex. 5, at 98.
57 F. Supp. 3d 457 (E.D. Pa. 2014).
where an expert claims only 51 percent confidence in his opinion, that opinion is unreliable. 22
This case, however, relies on a Pennsylvania state case which specifically held that expert
evidence based on a more-likely-than-not standard is insufficient for the jury to rely on in
making its determination. This standard is not reflected in Utah case law. In Utah, the plaintiff
must prove the fact of damages by evidence that “give[s] rise to a reasonable probability that the
plaintiff suffered damage as a result of the breach.” 23
Defendant also cites to In re Yasmin and Yaz (Drospirenone) Marketing, Sales Practices
& Products Liability Litigation 24 to support its proposition. However, this case stands for the
opposite proposition. In In re Yasmin and Yaz the federal district court admitted the challenged
expert testimony citing to an Illinois case wherein the state court expressly rejected the argument
that expert testimony based on 51 percent likelihood cannot satisfy the reasonable degree of
certainty requirement. 25
In its reply brief, Defendant cites to Boyett v. City. of Washington 26 to support the
proposition that expert opinions must exhibit reasonable scientific certainty. Boyett does not
address whether opinions based on 51 percent probability meet this standard, but does provide
examples of expert testimony that are impermissibly speculative. The court in Boyett excluded
the testimony of four expert witnesses opining about issues surrounding a prison inmate’s death.
The shortcomings of the expert opinions rendered in Boyett, however, far surpass any alleged
Id. at 460.
Atkin Wright & Miles v. Mountain States Telephone and Telegraph Co., 709 P.2d 330,
336 (Utah 1985).
No. 3:09-CV-10012-DRH, 2011 WL 6732245 (S.D. Ill. Dec. 16, 2012).
Id. at *10.
No. 2:04CV1173, 2006 WL 3422104 (D. Utah Nov. 28, 2006).
shortcomings in Dr. Goldstein’s opinions. For example, the court found one expert’s opinions
“evince[d] speculation” where the expert claimed a certain nurse “would have had” access to
certain records and not that she did in fact have access to the records. 27 Another expert stated his
conclusions were “more likely than not,” however he had not reviewed much of the information
provided to him in preparation of his report and failed to disclose any data or other basis for his
claims. 28 The Court found yet another expert’s conclusions to be “too speculative to constitute
reliable medical opinions” where the expert stated a particular laceration was “undoubtedly”
caused by a “blunt foreign body,” yet, in the same report, stated “it is difficult to find
documentation as to exactly when and how these [injuries] occurred” and cited no source which
caused him to reach his “undoubted” conclusion. 29
The Court finds that Dr. Goldstein’s opinions do not exhibit the same deficiencies. As
previously discussed, Dr. Goldstein based his opinions on J.S.M.’s medical records, family
history, and data from numerous tests and questionnaires specified in his report. Further, he has
not contradicted his own testimony nor has he failed to review items in evidence that are critical
to his analysis. The cases cited by Defendant are unpersuasive. The Court holds that the level of
confidence Dr. Goldstein has in his opinions does not justify exclusion but is better addressed
though cross-examination and presentation of contradictory evidence and testimony at trial. 30
Id. at *7.
Id. at *8. Notably, the court did not take issue with the “more likely than not” standard
on which the expert based his opinions, but found that the opinions were unsupported.
Id. at *10.
See Daubert, 509 U.S. at 596.
Finally, Defendant’s argument that Dr. Goldstein’s opinions are unreliable because his
assessment does not consider J.S.M.’s recent improvements is not well taken. Dr. Goldstein
concluded his assessment of J.S.M. when J.S.M. was in second grade. Defendant correctly points
out that Dr. Goldstein’s assessment does consider the improvements J.S.M.’s third-grade teacher
reported in some areas Dr. Goldstein concluded were weaknesses at the time of J.S.M.’s
assessment. Though the most recent information would certainly be more reliable than
information that is one-year outdated, this is not sufficient grounds to invalidate all the data
collected in J.S.M.’s second-grade assessment. Again, the best method to address the outdated
portions of Dr. Goldstein’s data is through cross-examination. Furthermore, Dr. Goldstein has
testified that he is aware of the improvements reported by J.S.M.’s third grade teacher and will
create an addendum to his assessment that reflects the updated data. 31 Defendant may therefore
question Dr. Goldstein regarding J.S.M.’s noted improvements and the effect those
improvements have on Dr. Goldstein’s challenged opinions.
RELIABILITY OF MS. GALLI’S AND MR. SHARPE’S TESTIMONY
Defendant argues insofar as Ms. Galli and Mr. Sharpe rely on Dr. Goldstein’s testimony,
their testimony is also unreliable. “Unlike an ordinary witness, an expert is permitted wide
latitude to offer opinions, including those that are not based on firsthand knowledge or
observation.” 32 Ms. Galli and Mr. Sharpe are therefore permitted to rely on Dr. Goldstein’s
assessment so long as the information cited is reliable. Because the Court finds Dr. Goldstein’s
Docket No. 74 Ex. 5, at 63.
Daubert, 509 U.S. at 592 (citing Fed. R. Evid. 702 and 703).
testimony is sufficiently reliable under Rule 702, no basis exists to exclude the testimony of Ms.
Galli and Mr. Sharpe.
HELPFULNESS OF MS. GALLI’S AND DR. GOLDSTEIN’S TESTIMONY
Defendant also argues that the testimonies of Dr. Goldstein and Ms. Galli regarding
J.S.M.’s education capabilities are not helpful because the specified testimony is too speculative
to assist the jury in determining damages with reasonable certainty. “Rule 702’s ‘helpfulness’
standard requires a valid scientific connection to the pertinent inquiry as a precondition to
admissibility. . . . This condition goes primarily to relevance. Expert testimony which does not
relate to any issue in the case is not relevant and, ergo, non-helpful.” 33
The Court has found Dr. Goldstein’s opinions to be sufficiently reliable to be presented at
trial. Dr. Goldstein’s opinions regarding J.S.M.’s secondary education capabilities informed Ms.
Galli’s assessment of J.S.M.’s future earning capacity. Future earning capacity is relevant and
helpful to a jury determining a proper damages award. Defendant will have an opportunity to
cross-examine Dr. Goldstein as well as present rebuttal evidence to provide the jury with
information regarding any weaknesses in Dr. Goldstein’s testimony and, in turn, Ms. Galli’s
testimony insofar as she relied on Dr. Goldstein. The Court therefore rejects Defendant’s
contention that the stated testimony does not satisfy Rule 702’s “helpfulness” requirement.
Id. at 591–92.
It is therefore
ORDERED that Defendant’s Corrected Motion to Preclude Plaintiffs’ Experts from
Testifying at Trial that J.S.M. will be Unable to Study Science or Mathematics in College or
Attend Graduate School (Docket No. 74) is DENIED.
DATED this 10th day of January, 2017.
BY THE COURT:
United States District Judge
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