R.P. v. Santa Fe Pub. Sch.

R.P. and C.F., Plaintiffs, v. THE SANTA FE PUBLIC SCHOOLS, AND GARY F. GREGOR, in his individual capacity, Defendants.

No. 1:18-cv-01051-KWR-KK

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

March 30, 2021

MEMORANDUM OPINION AND ORDER

THIS MATTER comes before the Court upon Defendants' Motion to Exclude Expert Testimony of Dr. Charol Shakeshaft, filed on August 21, 2020 (Doc. 146). Having reviewed the parties' pleadings and the applicable law, the Court finds that Defendants' motion is not well-taken in part and, therefore, is GRANTED IN PART and DENIED IN PART.

BACKGROUND

This case arises out of the alleged repeated sexual assault of Plaintiffs by their fourth-grade teacher, Defendant Gregor, in the 2003-2004 school year while they were students at Agua Fria Elementary. Plaintiffs allege that Defendant Gregor groomed them, injected them with drugs, and sexually assaulted them.

Plaintiffs are now more than 24 years old. They allege that since the abuse, they have suffered from severe drug addiction and serious mental problems rendering them incapable of managing their affairs, with symptoms such as disassociation. R.P. asserts she suffers from PTSD, fear, and anxiety stemming from her abuse by Defendant Gregor.

Plaintiffs asserted the following claims against Defendants Santa Fe Public Schools and Gregor:

Count I: Substantive Due Process violation under the Fourteenth Amendment (§ 1983) against Defendant Gregor.

Count II: Federal Constitutional Violation (§ 1983) against Defendant Santa Fe Public Schools¹

Count IV: Title IX, 20 USC §§ 1681-88, for Sexual Abuse, against Defendant Santa Fe Public Schools

Count V: Claims under the New Mexico Tort Claims Act against Defendant Santa Fe Public Schools

Defendants contest Dr. Shakeshaft's qualifications as an expert witness. Neither party expressly asserted that an evidentiary hearing was necessary and thus the Court will rule on the papers after considering the parties' briefing and attached exhibits.

LEGAL STANDARD

Federal Rule of Evidence 702 provides:

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.

Fed. R. Evid. 702. The touchstone of admissibility under Rule 702 is helpfulness to the trier of fact. See Werth v. Makita Elec. Works, Ltd., 950 F.2d 643, 648 (10th Cir. 1991).

The gatekeeping function involves a two-step analysis. Milne v. USA Cycling Inc., 575 F.3d 1120, 1134 (10th Cir. 2009). First, the Court must determine whether the witness may be qualified as an expert. To qualify as an expert, the witness must possess such "knowledge, skill,experience, training, or education" in the particular field so that it appears that his or her opinion rests on a substantial foundation and tends to aid the trier of fact in its search for the truth. LifeWise Master Funding v. Telebank, 374 F.3d 917, 928 (10th Cir. 2004). "Rule 702 thus dictates a common-sense inquiry of whether a juror would be able to understand the evidence without specialized knowledge concerning the subject." United States v. McDonald, 933 F.2d 1519, 1522 (10th Cir. 1991).

Second, the Court must determine whether the witness' opinions are reliable under the principles set forth in Daubert and Kumho Tire. Ralston v. Smith & Nephew Richards, Inc., 275 F.3d 965, 969 (10th Cir. 2001). In Daubert, the Supreme Court identified five factors that may or may not be pertinent in assessing reliability: (1) the theory or technique in question can be and has been tested; (2) it has been subjected to peer review and publication; (3) it has a known or potential error rate; (4) the existence and maintenance of standards controlling its operation; and (5) whether it has attracted widespread acceptance within a relevant scientific community. 509 U.S. at 593-94. When assessing the reliability of a proposed expert's testimony, the Court may consider the Daubert factors to the extent relevant, which will depend on the nature of the issue, the expert's particular expertise, and the subject of his testimony. Kumho Tire, 526 U.S. at 150-51. "[W]hether Daubert's specific factors are, or are not, reasonable measures of reliability in a particular case is a matter that the law grants the trial judge broad latitude to determine." Kumho, 526 U.S. at 139.

Rule 702 further requires that expert testimony is relevant. One aspect of relevance is that the opinions have a sufficient factual basis and a reliable application of the methodology to the facts. Daubert, 509 U.S. at 591.

Expert witnesses may testify about ultimate issues of fact, but an expert may not state legal conclusions drawn by applying the law to the facts. United States v. Richter, 796 F.3d 1173, 1195(10th Cir. 2015). Although an expert may not give an impermissible legal conclusion, an expert may give testimony that embraces an ultimate issue so long as the expert's testimony assists, rather than supplants, the jury's judgment. Id. (quoting United States v. Dazey, 403 F.3d 1147, 1171-72 (10th Cir. 2005)); United States v. Schneider, 704 F.3d 1287, 1293 (10th Cir. 2013) (stating that Rule 704(a) allows expert opinion on an ultimate issue so long as he explains basis for any summary opinion and does not simply tell the jury what result to reach). "Permissible testimony provides the jury with the tools to evaluate an expert's ultimate conclusion and focuses on questions of fact that are amenable to the scientific, technical, or other specialized knowledge within the expert's field." Richter, 796 F.3d at 1195.

Where an expert witness's testimony is based on his experience, the expert witness must explain how his experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts. See United States v. Nacchio, 555 F.3d 1234, 1258 (10th Cir. 2009) (quoting Fed. R. Evid. 702 advisory committee's note (2000)).

So long as the district court has enough evidence to perform its duty in assessing the relevance and reliability of an expert's proposed testimony, a hearing is not required. See United States v. Call, 129 F.3d 1402, 1405 (10th Cir. 1997); See Goebel, 215 F.3d at 1087 (noting that a Daubert hearing "is not mandated" and that a district court may "satisfy its gatekeeper role when asked to rule on a motion in limine"). The proponent of the expert bears the burden by a preponderance of the evidence to establish that the requirements for admissibility have been met. See Nacchio, 555 F.3d at 1251.

Although the Court is required to conduct a Daubert examination of all experts before it, it need only expressly address the specific objections before it. United States v. Avitia-Guillen,680 F.3d 1253, 1259 (10th Cir. 2012) ("When a party fails to object to an expert's methodology, the district court need not make explicit findings."), citing United States v. Velarde, 214 F.3d 1204, 1209 n.3 (10th Cir.2000) (noting the defendant did not challenge the doctor's "credentials, expertise, or qualifications to testify as an expert"); Macsenti v. Becker, 237 F.3d 1223, 1233 (10th Cir. 2001) (specific findings on the record only required on party's objection); Goebel v. Denver & Rio Grande W. R.R. Co., 215 F.3d 1083, 1088 n.2 (10th Cir. 2000) (when no objection is raised, district courts are not required to make "explicit on-the-record rulings" and, "we assume that the district court consistently and continually performed a trustworthiness analysis sub silentio of all evidence introduced at trial.").

DISCUSSION

Plaintiffs retained Dr. Shakeshaft as "an expert in educational administration," to opine on the sufficiency of Defendant Santa Fe Public Schools' (SFPS) practices, policies, procedures, and employee handbooks regarding training, prevention, detection, reporting, and investigation of sexual abuse. Doc. 158 at 4; see also Doc. 140-29, Ex. AC (Plaintiffs' Disclosure of Expert Witnesses) ("Dr. Shakeshaft may testify as to her analysis of the systems in place at the Santa Fe Public Schools as applied to the case at hand.").

Dr. Shakeshaft has a Ph.D. in educational administration and has served as a professor in that capacity for 40 years, currently with Virginia Commonwealth University. Doc. 159-1 at 3. Dr. Shakeshaft has extensive experience; she began "studying sexual abuse of students in schools in the 1980s," has received three grants by the U.S. Department of Education and has authored a Congressionally mandated report on educator sexual misconduct in the United States, published in 2004. Id.

After reviewing relevant documents for the case², Dr. Shakeshaft compiled her report, resulting in a series of "findings" relating to the adequacy of SFPS' policies for prevention of educator sexual misconduct, hiring practices/vetting of prospective candidates, training of administrators, employees, students and parents relating to sexual harassment, reporting and investigation mechanisms of educator sexual misconduct, responses to allegations of possible sexual misconduct and red flags, and employee and student safety supervision, including after an employee has been noted for possibly inappropriate behavior. Doc. 159-1 at 23-52. Dr. Shakeshaft concludes with a series of "opinions"³, finding that "[a] combination of Santa Fe's (1) inadequate or absent policies, (2) lax hiring, (3) near total absence of training, (4) failures to report, (5) inadequate responses to allegations and red flags, and (6) cursory and undiscerning supervision led to the sexual abuse of R.P and C.F. The Santa Fe Public Schools displayed deliberate...