United States v. Shaw

1

UNITED STATES OF AMERICA, Plaintiff, v. SCOTT SHAW, Defendant.

No. 22-cr-00105-BLF-1

United States District Court, N.D. California, San Jose Division

April 5, 2023

ORDER RE EVIDENTIARY MOTIONS

[RE: ECF NOS. 43, 44, 45]

BETH LABSON FREEMAN, UNITED STATES DISTRICT JUDGE.

Defendant Scott Shaw, an athletic trainer at a public university in California, allegedly touched the breasts and/or buttocks of several women student athletes without their consent and without a legitimate purpose. The United States (the “Government”) charged Shaw with violating a federal criminal civil rights statute for depriving the student athletes of their right to bodily integrity while acting under color of law.

The parties had a deadline of January 30, 2023 to file any motions directed at expert reports and any motions to exclude/include Evidence Rule 413 and 404(b) acts. ECF No 28. Defendant filed objections to certain expert testimony. ECF No. 44. The Government filed a motion to admit evidence of other acts of sexual assault pursuant to Rule 413. ECF No 43. Defendant filed a motion to exclude other acts evidence pursuant to Rule 413 or Rule 404(b). ECF No. 45. The Court held a hearing on the three motions on March 23 and 24, 2023. See ECF Nos. 63, 64. The Court made extensive findings on the record during that hearing. For the reasons stated on the record at the hearing and explained below, the Court rules as follows on the parties' motions.

I. OBJECTIONS TO EXPERT TESTIMONY

A. Legal Standard

Federal Rule of Evidence 702 provides that an expert must be qualified to testify by “knowledge, skill, experience, training, or education” and that a qualified expert may testify 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 district court acts as the gatekeeper to “ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589 (1993); Primiano v. Cook, 598 F.3d 558, 564-65 (9th Cir. 2010). This “basic gatekeeping obligation” applies not only to scientific testimony but to all expert testimony. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147 (1999). The Court has broad discretion concerning the admissibility or exclusion of expert testimony. Wood v. Stihl, Inc., 705 F.2d 1101, 1104 (9th Cir. 1983).

Evidence is relevant if it will “assist the trier of fact to understand the evidence or to determine a fact in issue.” Daubert, 509 U.S. at 591 (quoting Fed.R.Evid. 702). “Expert testimony which does not relate to any issue in the case is not relevant and, ergo, non-helpful.” Id. (citation omitted). This consideration is described as one of “fit,” i.e., “whether expert testimony proffered in the case is sufficiently tied to the facts of the case that it will aid the jury in resolving a factual dispute.” Id. (quoting United States v. Downing, 753 F.2d 1224, 1242 (3d Cir. 1985)).

The reliability of expert testimony generally turns on four factors: “(1) whether a theory or technique can be tested; (2) whether it has been subjected to peer review and publication; (3) the known or potential error rate of the theory or technique; and (4) whether the theory or technique enjoys general acceptance within the relevant scientific community.” Estate of Barabin v. AstenJohnson, Inc., 740 F.3d 457, 463 (9th Cir. 2014) (quoting United States v. Hankey, 203 F.3d 1160, 1167 (9th Cir. 2000)), overruled on other grounds by United States v. Bacon, 979 F.3d 766 (9th Cir. 2020). In the Ninth Circuit, another significant factor is “whether the experts are proposing to testify about matters growing naturally and directly out of research they have conducted independent of the litigation, or whether they have developed their opinions expressly for purposes of testifying.” Daubert v. Merrell Dow Pharms., Inc., 43 F.3d 1311, 1317 (9th Cir. 1995). But the factors of reliability “do not constitute a ‘definitive checklist or test.'” Kumho Tire, 526 U.S. at 150 (quoting Daubert, 509 U.S. at 593) (emphasis in original). The reliability inquiry is flexible, and “whether 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.” Id. at 153.

B. Analysis

Defendant objects to portions of the testimony of each of the Government's two expert witnesses: (1) Dr. James R. Borchers and (2) Dr. Cindy J. Chang. ECF No. 44 (“Ex. Mot.”); see also ECF No. 50 (“Ex. Mot. Reply”). The Government opposes. ECF No. 46 (“Ex. Mot. Opp.”).

1. Qualifications

Defendant states that Dr. Borchers and Dr. Chang are not qualified to testify as experts. Ex. Mot. at 3-5. But digging into the substance of Defendant's arguments, he appears to mainly be arguing that the experts are not qualified to testify as to the state of mind of the victims in the case. Ex. Mot. at 4-5. In their expert reports, the expert witnesses discuss the state of mind of the alleged victims, and Defendant argues that they are unqualified to testify on this subject at trial. Id. The Government states that it does not intend to call these expert witnesses to testify as to the state of mind of the alleged victims. See Ex. Mot. Opp. at 3. The Court agrees that the expert witnesses may not testify as to the state of mind of the alleged victims in the case.

The Court finds that the Government's expert witnesses are qualified to testify as to “treatment performed by athletic trainers.” See Ex. Mot. Opp. at 2. Dr. Borchers has an M.D. degree. Declaration of Jeremy D. Blank, ECF No. 44-1 (“Blank Decl.”), Ex. 2. He is a Professor of Clinical Family Medicine/Sports Medicine for the Department of Family Medicine at The Ohio State University College of Medicine. Id. He serves as the Chief Medical Officer for the Big Ten Conference and as the President and Co-founder of the U.S. Council for Athletes' Health. Id. He previously served as Head Team Physician for The Ohio State University Athletic Department. Id. Dr. Chang also has an M.D. degree. Blank Decl., Ex. 3. She is a Clinical Professor of Orthopedic Surgery at the University of California, San Francisco School of Medicine. Id. She has been the Lead Medical Consultant for Athletic Training Services at Benioff Children's Hospital Oakland's Sports Medicine Center for Young Athletes since 2015. Id. She previously served as Head Team Physician for the University of California, Berkeley. Id. The Court finds the Government's expert witnesses are clearly qualified.

2. Other Arguments

a. Victims' State of Mind

In addition to arguing that the experts are not qualified to testify as to the victims' state of mind, Defendant argues that testimony as to the mental state of the alleged victims should be excluded because it would be based on unreliable methods and would be speculative. Ex. Mot. at 5-7. Again, the Government does not intend to elicit testimony from the expert witnesses on the state of mind of the alleged victims. Ex. Mot. Opp. at 3. The Court agrees that testimony on this subject would be improper. Defense counsel may object to questions or testimony on this basis, and the Court will address those objections at trial.

b. Issues Remaining in Question

Defendant argues that opinions in Dr. Borchers's expert report as to “issues that remain in question” should be excluded because they are too speculative and vague. Ex. Mot. at 6. The Government counters that this phrase is taken out of context, and the items identified by Dr. Borchers in that section are “all of Defendant's practices that call into question the legitimacy of his treatment.” Ex. Mot. Opp. at 5. The report states as follows:

In summary, the following issues remain in question regarding the actions of [] Scott Shaw and the treatments described:

1. Proper informed consent regarding the treatments provided

2. Proper documentation of the conditions being treated, the treatments themselves and the outcomes of the treatments

3. Appropriate physical location for the described treatments (in an open training room without privacy)

4. Availability of a chaperone during the treatments

5. Evidence for appropriate credentials/training for the athletic trainer to perform these treatments 6. The lack of valid reasons for massaging sensitive areas including the breast, pubic, groin and buttock areas for athletic related issues such as shoulder and low back pain

Blank Decl., Ex. 2.

Looking at the Report, it is clear this list is a summary of the problems that Dr. Borchers identified with Defendant's treatment of the alleged victims. The list is not speculative nor vague. Based on the content of the report, Dr. Borchers's testimony about each of these issue areas will not be speculative nor vague. And the report shows that Dr. Borchers used reliable methods to develop this list. Defense counsel may object to questions or testimony at trial that they believe are vague or speculative, and the Court will address those objections at trial.

c. Legal Conclusions

Defendant also objects to any testimony by the expert witnesses as to legal conclusions. Ex. Mot. at 6-9. The Government states that its expert witnesses will not draw any legal conclusions. Ex. Mot. Opp. at 5, 7. The Court agrees that the expert witnesses cannot testify as to issues of law. See Hangarter v. Provident Life & Accident Ins. Co., 373 F.3d 998, 1016 (9th Cir. 2004) (“That said, ‘an expert witness...