Roohbakhsh v. Bd. of Trs. of Neb. State Colls.

LISSETTE LARIOS ROOHBAKHSH, as personal representative ofthe Estate of Fatima Lissette Larios and on behalf of next of kin;and NELSON LARIOS, as next of kin; Plaintiffs, v. BOARD OF TRUSTEES OF THE NEBRASKA STATE COLLEGES,and CHADRON STATE COLLEGE, Defendants.

8:17CV31

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

October 31, 2019

MEMORANDUM and ORDER

This matter is before the Court on the parties' motions to exclude testimony of experts under Daubert v. Merrell Dow Pharms., 509 U.S. 579, 589 (1993), Filing Nos. 125, 128, 134, 137, and 144. This is an action for discrimination on the basis of sex in a federally funded educational program brought pursuant to Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq. ("Title IX").

Defendants Board of Trustees of the Nebraska State Colleges, and Chadron State College (collectively, "Chadron State," "the College," or "defendant") move to exclude testimony of the plaintiffs' expert witnesses Saundra K. Schuster, J.D., Filing No. 125, and Donna Peters, Psy.D, Filing No. 128. The plaintiffs, Lissette Larios Roohbakhsh, as personal representative of the Estate of Fatima Lissette Larios and next of kin, and Nelson Larios ("plaintiffs") move to exclude certain testimony and opinions of defendant's expert witnesses Peter Lake, J.D., Lisa Boesky, Ph.D., and Karl Williams, M.D.

The parties respectively disclosed Saundra K. Schuster and Peter Lake as experts on Title IX compliance and disclosed Dr. Peters and Dr. Boesky, both psychologists, as suicide/causation witnesses. Chadron State disclosed Dr. Williams, M.D., a Forensic Pathologist and the Chief Medical Examiner for Allegheny County, Pennsylvania, to testify regarding the condition of Fatima Larios's body at the time of post-mortem examination.

I. Title IX Experts

A. Law

Federal Rule of Evidence 702 governs the admissibility of expert testimony and requires that: "(1) the evidence must be based on scientific, technical or other specialized knowledge that is useful to the finder of fact in deciding the ultimate issue of fact; (2) the witness must have sufficient expertise to assist the trier of fact; and (3) the evidence must be reliable or trustworthy." Kudabeck v. Kroger Co., 338 F.3d 856, 859 (8th Cir. 2003). "The touchstone for the admissibility of expert testimony is whether it will assist or be helpful to the trier of fact." Lee v. Andersen, 616 F.3d 803, 808 (8th Cir. 2010) (quoting McKnight ex rel. Ludwig v. Johnson Controls, Inc., 36 F.3d 1396, 1408 (8th Cir. 1994). Expert testimony assists the trier of fact when it provides information beyond the common knowledge of the trier of fact. Kudabeck, 338 F.3d at 860.

When faced with a proffer of expert testimony, trial judges are charged with the "gatekeeping" responsibility of ensuring that all expert evidence admitted is both relevant and reliable. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999); Daubert, 509 U.S. at 589; United States v. Merrell, 842 F.3d 577, 582 (8th Cir. 2016). The proponent of expert testimony bears the burden of providing admissibility beyond a preponderance of the evidence. Lauzon v. Senco Prods., 270 F.3d 681, 686 (8th Cir.2001). A witness who offers expert opinions on multiple topics may be qualified as an expert on one topic but not others. See Wheeling Pittsburgh Steel Corp. v. Beelman River Terminals, Inc., 254 F.3d 706, 715 (8th Cir. 2001)

In the Eighth Circuit, "cases are legion that, correctly, under Daubert, call for the liberal admission of expert testimony." Johnson v. Mead Johnson & Co., 754 F.3d 557, 562 (8th Cir. 2014) (citations omitted). "As long as the expert's scientific testimony rests upon 'good grounds, based on what is known' it should be tested by the adversary process with competing expert testimony and cross-examination, rather than excluded by the court at the outset." Id. (quoting Daubert, 509 U.S. at 590). An expert's opinion should be excluded only if the "opinion is so fundamentally unsupported that it can offer no assistance to the jury." Synergetics, Inc. v. Hurst, 477 F.3d 949, 956 (8th Cir. 2007).

A trial court must be given wide latitude in determining whether an expert's testimony is reliable. See Kumho Tire, 526 U.S. at 152. This analysis requires that the court make a "preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology . . . can be [properly] applied to the facts in issue." Daubert, 509 U.S. at 592-93. "When the application of a scientific methodology is challenged as unreliable under Daubert and the methodology itself is sufficiently reliable, outright exclusion of the evidence is "warranted only if the methodology 'was so altered by a deficient application as to skew the methodology itself.'" United States v. Gipson, 383 F.3d 689, 697 (8th Cir. 2004) (quoting United States v. Martinez, 3 F.3d 1191, 1198 (8th Cir. 1993) (internal quotation marks and ellipses omitted). Generally, deficiencies in application go to the weight of the evidence, not its admissibility. Id. District courts are "not to weigh or assess the correctness of competing expert opinions." Johnson, 754 F.3d at 562. Thejury, not the trial court, should be the one to 'decide among the conflicting views of different experts.'" Kumho Tire, 526 U.S. at 153.

An expert cannot testify as to matters of law, and legal conclusions are not a proper subject of expert testimony. S. Pine Helicopters, Inc. v. Phoenix Aviation Managers, Inc., 320 F.3d 838, 841 (8th Cir. 2003). "Matters of law are for the trial judge, and it is the judge's job to instruct the jury on them." Id.; see also Police Ret. Sys. of St. Louis v. Midwest Inv. Advisory Serv., Inc., 940 F.2d 351, 357 (8th Cir. 1991) ("Explaining the law is the judge's job"). Testimony regarding the requirements of law would give the jury the appearance that the Court is shifting the responsibility to decide the case to the expert. See Farmland Indus. v. Frazier-Parrott Commodities, Inc., 871 F.2d 1402, 1409 (8th Cir. 1989).

Further, an expert cannot offer an opinion that defendant violated a statute. Frye v. Hamilton Cty. Hosp., No. 18-CV-3031-CJW-MAR, 2019 WL 2404330, at *4 (N.D. Iowa June 7, 2019); see also Portz v. St. Cloud State Univ., 297 F. Supp. 3d 929, 952 (D. Minn. 2018) (excluding expert's testimony "about the legal requirements of Title IX or about [the expert's] conclusions as to whether [defendant] complies with Title IX"); Doe YZ v. Shattuck-St. Mary's Sch., 214 F. Supp. 3d 763, 781 (D. Minn. 2016) (holding that an expert's testimony "may not extend to whether [defendant] or any of its employees actually violated [the statute at issue] because that would be an inadmissible legal conclusion"). However, "[a]n expert does not invade the court's authority by discoursing broadly over the entire range of the applicable law where the opinion is focused on a specific question of fact." Camacho v. Nationwide Mut. Ins. Co., 13 F.Supp.3d 1343, 1366 (N.D. Ga. 2014).

Expert or fact testimony on industry practice or standards, however, is often relevant and admissible. S. Pine Helicopters, Inc., 320 F.3d at 841. Testimony about industry standards, or policies adopted by other institutions to comply with applicable regulations, is not generally regarded as a legal opinion or conclusion. See Portz, 297 F. Supp. 3d at 953 (holding that expert could testify as to the history and purposes of Title IX and relevant industry practices or standards, but could not testify about the legal requirements of Title IX); Shattuck-St. Mary's Sch., 214 F. Supp. 3d at 781 (permitting plaintiffs' expert to testify "as to the existence of mandatory reporting statutes and the policies and procedures that other schools have implemented to comply with such statutes" but excluding testimony about whether defendant violated the mandatory reporting statute in question). Expert testimony regarding how schools effectively approach Title IX discrimination can be helpful to the jury. Doe v. Wharton Indep. Sch. Dist., No. 2:16-CV-48, 2017 WL 932935, at *2 (S.D. Tex. Mar. 9, 2017)(stating that, without testifying as to ultimate facts or legal conclusions, educational experts can address these standards of care for remedying the problems that Title IX was formulated to address and allowing testimony regarding how schools effectively approach Title IX discrimination and how much notice is actual notice that triggers a duty to respond); see also Doe by Watson v. Russell Cty. Sch. Bd., 292 F. Supp. 3d 690, 717-18 (W.D. Va. 2018); S. Pine Helicopters, 320 F.3d at 841. This expertise can help the jury determine whether a school's response is ineffective or inadequate under the circumstances. See Doe v. Wharton, 2017 WL 932935, at *2.

Generally, "an opinion is not objectionable just because it embraces an ultimate issue." Fed. R. Evid. 704(a). However, "[o]pinions that 'merely tell the jury what result to reach' are not admissible." Lee, 616 F.3d at 809 (quoting Fed. R. Evid. 704 advisorycommittee's note). Determining whether a defendant has displayed deliberate indifference to a plaintiff's rights is distinctly the province of the fact-finder at trial. See Doe v. St. Francis Sch. Dist., 834 F. Supp. 2d 889, 892 (E.D. Wis. 2011), aff'd, 694 F.3d 869 (7th Cir. 2012).

"'As a general rule, the factual basis of an expert opinion goes to the credibility of the testimony, not the admissibility, and it is up to the opposing party to examine the factual basis for the opinion in cross-examination.'" Nebraska Plastics, Inc. v. Holland Colors Americas, Inc., 408 F.3d 410, 416 (8th Cir. 2005) (quoting Hartley v. Dillard's, Inc., 310 F.3d 1054, 1061 (8th Cir. 2002)). However, expert testimony must be "sufficiently tied to the facts of the case that it will aid the jury in resolving a factual dispute." Concord Boat Corp. v. Brunswick Corp., 207 F.3d 1039, 1057 (8th Cir. 2000). "If a party believes that an...