Free Response to Motion - District Court of Delaware - Delaware

Case 1:06-cv-00725-GMS

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE KENNETH S. MITCHELL, Plaintiff, v. WACHOVIA CORPORATION, t/a WACHOVIA SECURITIES, WACHOVIA SECURITIES, L.L.C., WACHOVIA SERVICES, INC., WACHOVIA BANK OF DEL, N.A., TODD D. GAUTHIER, CAROLYN J. BEAM, and DOROTHY A. DIFEBO, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) )

C.A. No. 06-725 (GMS) JURY TRIAL DEMANDED

PLAINTIFF'S RESPONSE IN OPPOSITION TO DEFENDANTS' MOTION IN LIMINE TO LIMIT TESTIMONY OF PLAINTIFF'S PSYCHIATRIC EXPERTS

BIGGS AND BATTAGLIA Victor F. Battaglia, Sr. (Del. Bar #156) Steven F. Mones (Del. Bar #2611) 921 N. Orange Street P.O. Box 1489 Wilmington, DE 19899-1489 Tel: 302-655-9677 Fax: 302-655-7924 [email protected] Attorneys for Plaintiff April 10, 2008

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Plaintiff Kenneth S. Mitchell responds as follows to defendants' motion in limine seeking to limit the scope of trial testimony plaintiff's psychiatric experts: Plaintiff, a Financial Advisor employed by the Wachovia defendants, is pursuing claims of race and gender discrimination, and other related claims, under federal and state law. Trial is scheduled to commence on May 12, 2008. Among the witnesses plaintiff identified for trial are Jorgé Pereira-Ogan, M.D., his treating psychiatrist, and Frederick Kozma, Ph.D., his treating psychologist. Both of these mental health professionals are expected to testify that plaintiff developed depression and anxiety related to his work situation at Wachovia. Defendants seek to bar these experts from testifying "that alleged unlawful harassment, discrimination or retaliation caused him any emotional damage." Defendants' Motion at 2. Plaintiff submits that defendants' objections go to the weight of the evidence, not to the admissibility of the evidence, and hence, should be denied. The Court's evaluation of this motion in limine is governed by Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). That case, addressing the admissibility of expert testimony under the Federal Rules of Evidence, developed the concept of the trial court serving as the "gatekeeper" for evaluating the admissibility of expert testimony. Id. at 592-593. There are no black-and-white rules for evaluating the admissibility of expert testimony. However, consistent with the Federal Rules of Evidence (particularly Rule 702), key factors include the qualifications and experience of the expert, whether the evidence is reliable, and whether the evidence will assist the trier of fact in evaluating the issues in the case. Id. at 591-593. In this case, plaintiff is seeking to offer testimony of two mental health professionals who: (a) have diagnosed conditions that are relevant to the issues in this case; (b) have opinions concerning the causation of the diagnoses that are relevant to the issues in this case; and (c) are

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continuing to treat plaintiff for the conditions that they believe are causally related to the issues in this case. Unlike a situation involving a surgeon utilizing a x-ray film to illustrate a fracture to the jury, the nature of mental health means that psychiatrists and psychologists cannot utilize such demonstrative evidence routinely. That does not mean, however, that they are not qualified to give expert opinions in cases or to offer such opinions to a jury. See, e.g., Forest Laboratories, Inc. v. IVAX Pharmaceuticals, Inc., 237 F.R.D. 106, 111-112 (D.Del. 2006) (clinical psychiatrist permitted to offer expert opinions as to physician prescription writing practices). Defendants appear to object to Drs. Pereira-Ogan and Kozma offering "legal conclusions" about the circumstances of plaintiff's employment with Wachovia. Plaintiff

believes this fear is unfounded and based on a misconception of the nature of the testimony. Defendants concede that plaintiff first sought mental health care in 2005 (Defendants' Motion at 2), which is after the manifestation of discriminatory conduct alleged by plaintiff (commenced in 2003, and escalated in 2004). Defendants can point to no mental health care sought by plaintiff prior to the events at issue in this case. Defendants can also point to no other reason for plaintiff to have sought mental health care at that time. In effect, defendants seek to bar the mental health professionals from testifying about why they are treating plaintiff despite the complete absence of any explanation other than the experiences plaintiff underwent at his employment with Wachovia. Defendants' position also ignores the fact that plaintiff himself is able to offer testimony about why he sought mental health care. He may not be able to offer expert diagnoses of depression or anxiety through his own testimony, but he can certainly testify that he felt depressed and anxious and believed he needed professional help.

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Psychiatric testimony is routine in cases involving claims of injuries, and juries are free to give such testimony whatever weight they deem appropriate. Haas v. Wyoming Valley Health Care Sys., 2007 WL 465118l, mem. op., Caputo, D.J. (M.D.Pa. Feb. 8, 2007) (copy attached as Exhibit-1) (psychiatrist able to testimony about conditions imposed on plaintiff based on his "specialized knowledge of psychiatric conditions"); Eck v. Yellow Transp., Inc., 2006 WL 5116705, mem. order, Hart, M.J. (E.D.Pa. Oct. 16, 2006) (copy attached as Exhibit-2) (defendant's objections to psychiatrist's testimony went to weight of evidence). Moreover, plaintiff is required to offer psychiatric testimony in order to support his claims of depression and anxiety. See, e.g., Schatzman v. Martin Newark Dealership, Inc., 233 F.Supp.2d 620, 624 (D.Del. 2002) (Court noted that plaintiff did not offer psychiatric testimony to support claims of depression and emotional distress). Plaintiff is not offering Drs. Pereira-Ogan and Kozma as eyewitnesses to discriminatory acts, but rather as experts to testify about plaintiff's perception of the conduct and the effects on his health (which is the fundamental nature of psychiatry and psychology). Plaintiff's

perceptions are clearly admissible, and as mental health professionals, Drs. Pereira-Ogan and Kozma spend their lives dealing with, and analyzing, their patients' perceptions. Defendants argue that the testimony of Drs. Pereira-Ogan and Kozma "should be limited to what they personally observed and medically concluded about plaintiff's mental status." Defendants' Motion at 3 (emphasis in original). Mental health professionals, like other health care professionals, cannot simply recite a medical conclusion without grounds. This is perfectly illustrated by defendants' own example, at page 2 of their motion, where they recite Dr. PereiraOgan's diagnosis of "Axis IV: victim of discrimination at work." Dr. Pereira-Ogan will be able to explain to the jury what "Axis IV" means, its relationship to the conduct as reported by

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plaintiff, the relationship to the clinical observations he made, and the professional impressions he drew, from his sessions with plaintiff. That is part and parcel of psychiatric practice, and one cannot, as defendants suggest, limit a mental health professional to testify about a medical conclusion without delving into the facts underlying the conclusion. Psychiatric testimony is routine in this Court, and it is no more likely to confuse a jury than any other area of expert testimony. Testimony by Drs. Pereira-Ogan and Kozma is

permissible under Rule 702 because it is precisely the type of probative testimony that will clarify the issues for the jury and explain the effects on plaintiff. Defendants will have a full opportunity to cross-examine the experts so as to challenge the expert opinions and the grounds therefore, including the factual bases of their opinions, just as in any other case dealing with expert testimony. See Daubert, 509 U.S. at 596 ("Vigorous 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."). Therefore, plaintiff respectfully requests that the Court deny defendants' motion in limine seeking to limit the testimony of Drs. Pereira-Ogan and Kozma. BIGGS AND BATTAGLIA /s/ Steven F. Mones Steven F. Mones (Del. Bar #2611) 921 N. Orange Street P.O. Box 1489 Wilmington, DE 19899-1489 Tel: 302-655-9677 Fax: 302-655-7924 [email protected] Attorneys for Plaintiff Kenneth S. Mitchell

April 10, 2008

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