Brush v. Old Navy LLC

687 F.Supp.3d 452

Aaron BRUSH, Plaintiff, v. OLD NAVY LLC, Scott Graham, Timothy Oliver, and Town of Williston, Defendants.

Case No. 2:21-cv-00155

United States District Court, D. Vermont

Signed August 17, 2023

David E. Bond, Esq., Strouse & Bond PLLC, Burlington, VT, for Plaintiff.

John D. Prendergast, Esq., Samuel H. Martin, Esq., Jackson Lewis P.C., Portsmouth, NH, Laura C. Bunting, Esq., Pro Hac Vice, Jackson Lewis P.C., Pittsburgh, PA, Melinda J. Caterine, Esq., Littler Mendelson PC, Portland, ME, for Defendant Old Navy LLC.

Kevin L. Kite, Esq., Carroll, Boe, Pell & Kite, P.C., Middlebury, VT, for Defendant Scott Graham.

Michael J. Leddy, Esq., McNeil, Leddy & Sheahan, P.C., Burlington, VT, for Defendant Timothy Oliver.

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT OLD NAVY'S MOTION TO EXCLUDE PLAINTIFF'S EXPERT THOMAS POWELL AND GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT

Christina Reiss, District Judge

Plaintiff Aaron Brush ("Plaintiff") brings this case against Defendants Old Navy, LLC ("Old Navy"), Scott Graham ("Defendant Graham"), Timothy Oliver ("Defendant Oliver"), and the Town of Williston (the "Town") (collectively, "Defendants"), alleging that Defendants unlawfully discriminated against him because of his Tourette's syndrome, falsely imprisoned him, and violated his Fourth Amendment right to be free from unreasonable search and seizure.

Pending before the court are Old Navy's motion to exclude Plaintiff's expert witness Thomas Powell, PhD ("Dr. Powell") (Doc. 125) and Defendants' individual motions for summary judgment. (Docs. 122, 123, 124, 126.) The court held a hearing on all pending motions on December 6, 2022, at which time it took the motions under advisement.

Plaintiff is represented by David E. Bond, Esq. Old Navy is represented by John D. Prendergast, Esq., Laura C. Bunting, Esq., and Samuel H. Martin, Esq. Defendant Graham is represented by Kevin L. Kite, Esq. Defendant Oliver is represented by Michael J. Leddy, Esq. The Town is represented by Marikate E. Kelley, Esq. and Philip C. Woodward, Esq.

I. Procedural Background.

On May 5, 2021, Plaintiff filed a Complaint in Vermont Superior Court, Addison Unit, alleging four causes of action: a claim for disability discrimination in violation of 9 V.S.A. § 4501 against Old Navy (Count I); a claim for false imprisonment against Old Navy and Defendants Graham and Oliver (Count II); a 42 U.S.C. § 1983 claim for unreasonable search and seizure in violation of the Fourth Amendment against Defendants Graham and Oliver (Count III); and a 42 U.S.C. § 1983 claim for failure to properly train and supervise Defendants Graham and Oliver against the Town (Count IV).¹ On June 10, 2021, Defendants removed the case to this court.

On September 9, 2022, Defendants individually moved for summary judgment on all claims against them. (Docs. 122, 123, 124, 126.) On October 11, 2022, Plaintiff responded to the motions filed by Defendants Graham, Oliver, and the Town. (Docs. 137, 138, 139.) Defendant Graham replied on October 24, 2022 (Doc. 148), and Defendant Oliver and the Town replied on October 25, 2022. (Docs. 150, 151.) Plaintiff responded to Old Navy's motion for summary judgment on October 18, 2022 (Doc. 143), and Old Navy replied on November 8, 2022. (Doc. 153.)

Also on September 9, 2022, Old Navy filed a motion to exclude Dr. Powell. (Doc. 125.) Plaintiff responded on September 22, 2022 (Doc. 130), and Old Navy replied on October 6, 2022. (Doc. 134.)

II. Defendant Old Navy's Motion to Exclude Plaintiff's Expert Witness Dr. Thomas Powell.

A. Dr. Powell's Opinions.

Plaintiff seeks to introduce the expert opinion of Dr. Powell in support of Plaintiff's claim that his experience at Old Navy caused and will cause him past and future psychological harm, including post-traumatic stress disorder ("PTSD"). Old Navy asks the court to exclude Dr. Powell's PTSD diagnosis as unreliable, although it does not challenge Dr. Powell's qualifications as an expert witness.

Dr. Powell is a forensic psychologist who has a PhD in clinical psychology and is licensed as a psychologist-doctorate by the State of Vermont. Since 2004, he has conducted psychological evaluations and risk appraisals for individuals referred to him by attorneys, courts, employers, and others. He has also provided expert witness testimony in state and federal courts, consulted in civil and criminal litigation, and trained clinicians, probation officers, and others.

Dr. Powell supervised doctoral students in clinical psychology as an adjunct psychology professor at the University of Vermont from 2011 to 2021 and at Antioch University of New England from 2014 to 2021. From 1986 to 2004, he was the Director of Clinical Programs for the Vermont Department of Corrections. Since 1984, Dr. Powell has published and given presentations on various topics in psychology and criminal justice.

Dr. Powell interviewed Plaintiff on October 5 and October 19, 2021. During those interviews, he administered four psychometric tests. He bases his opinions on his clinical evaluation, as well as on Plaintiff's neurological and mental health records from various providers from 2011 to 2021 and on interviews with Plaintiff's mother, romantic partner, program manager, and probation officer. He opines:

As a result of the actions of Williston police and Old Navy employees on 11/28/19, [Plaintiff] suffers from exacerbated traumatic psychological symptoms that have negatively affected his life during the past two years. These include, but are not limited to, anger, agitation, avoidance, relationship stress, loss of sexual interest, self-doubt, cessation of music performances, and related symptoms of his disorders. He demonstrates psychological symptoms consistent with diagnoses of complex post-traumatic stress disorder, depression and obsessive[-]compulsive disorder. The actions of police and store employees on 11/28/19 substantially worsened his pre-existing clinical conditions.

(Doc. 130-3 at 3.)

Explaining that "[t]he Clinician-Administered PTSD Scale for [the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition ("DSM-5")] (CAPS-5) is a comprehensive assessment of the various criteria described in DSM-5 that form the basis for post-traumatic stress disorder[,]" id. at 8, Dr. Powell further opines:

Based on [Plaintiff's] responses [to the CAPS-5 test] (which aligned with other data sources and were deemed valid), [Plaintiff] meets criteria for PTSD related to his experiences at Old Navy on 11/28/19. The level of severity is particularly evident in symptoms related to his persistent negative mood, distorted cognitions, intrusive memories, and cued psychological distress.

Id. at 8-9. He concludes that Plaintiff's experience at Old Navy "caused significant, enduring psychological harm[,]" id. at 9, necessitating "specialized trauma therapy [which] is likely to cost $250 per hour, and extend for three to five years, costing in the range of $36,000 to $60,000." Id. at 10.

With regard to causation, Dr. Powell testified in deposition as follows:

A. . . . I would say that [Plaintiff] carries multiple diagnoses including depression, generalized anxiety, Tourette's syndrome, OCD and substance dependency. I think all of them were impacted in one degree or another by what happened at Old Navy. To cherry-pick one out is probably overstating the particular importance of one versus another because they all are important. They all have an impact on your life, and we've spent a good deal of time talking about the PTSD one but we -- the depression and the generalized anxiety and the other issues that he's got are, are very important as well. So, I would just — I would say that all, all the diagnoses were impacted by Old Navy.

Q. And, presumably, you mean impacted in a negative fashion?

A. True.

(Doc. 125-2 at 17.)

With regard to the PTSD diagnosis, Dr. Powell explained that he took "a somewhat expansive interpretation of Criteri[on] A" of the DSM-5 that he believed to be "consistent with the type of nonlethal, nonsexual, nonmilitary experience that we see in other folks who have been recently diagnosed with PTSD such as the, the 911 responders, people who have been exposed to something that is sufficiently overwhelming, that you are feeling helpless and in that moment overwhelmed." Id. at 56. He expected that "the trauma that will be described as a part of PTSD in DSM-6 is going to be expanded well beyond what it is now[.]" Id. at 9.

B. Standard of Review.

The admissibility of expert testimony is governed by Federal Rule 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 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 case.

Rule 702 obligates the court to serve as a gatekeeper for expert testimony, ensuring "that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand." Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 597, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

As a threshold matter, Dr. Powell's knowledge, education, and experience qualify him to offer an expert witness opinion regarding Plaintiff's psychological state as a result of the incident. See United States v. Tin Yat Chin, 371 F.3d 31, 40 (2d Cir. 2004) ("To determine whether a witness qualifies as an expert, courts compare the area in which the witness has superior knowledge, education, experience, or skill with the subject matter of the proffered testimony."). Old Navy does not contest his opinions on this basis. Instead, it asserts that Dr. Powell's PTSD...