Free Reply to Response to Motion - District Court of Colorado - Colorado

Case 1:01-cv-02089-MSK-CBS

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-cv-2089-MSK-CBS DEAN A. BRAMLET, M.D., Plaintiff, v. ASPEN VALLEY HOSPITAL DISTRICT Defendant. _____________________________________________________________________ PLAINTIFF'S REPLY BRIEF IN SUPPORT OF MOTION IN LIMINE TO EXCLUDE TESTIMONY OF DEFENDANT'S EXPERT WITNESS DIANE W. DeWITT, PH.D _____________________________________________________________________ COMES NOW the Plaintiff, Dr. Dean Bramlet, by and through his attorneys, Leavenworth & Karp, P.C., and in support of the Plaintiff's Motion in Limine, replies as follows: INTRODUCTION Plaintiff timely endorsed, pursuant F.R.C.P. 26(a)(2), a vocational placement expert, Dr. Michael Shahanasarian, after he met with the Plaintiff on numerous occasions and evaluated him. Defendant, AVH, disclosed Dr. Diane DeWitt as a rebuttal expert witnesses. Plaintiff filed his motion to strike Dr. DeWitt. In its response, AVH seems to be arguing that: 1) the standards set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), are somehow inapplicable to determining the admissibility of Dr. DeWitt's testimony; 2) that Dr. DeWitt is qualified to provide

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expert testimony; 3) that the methods Dr. DeWitt employed in rendering her opinions are acceptable in her field; 4) that since these methods are adequate, Dr. DeWitt's testimony meets the standards set forth in Daubert; and 5) that Dr. DeWitt's opinion will somehow assist the jury in determining a material issue in this litigation. Nothing asserted by Defendant in its Response establishes that the opinions are admissible. ARGUMENT I. FRE 702 AND THE U.S. SUPREME COURT'S HOLDINGS ARE THE APPLICABLE STANDARDS OF REVIEW IN DETERMINING THE ADMISSIBILITY OF EXPERT TESTIMONY. The admission of expert testimony is governed by FRE 702, which states, in its entirety: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. FRE 702 was interpreted in Daubert v. Merrell Dow Pharmaceutical, 509 U.S. 579 (1993), which the Defendant argues should not be applied in this case to determine the admissibility of its expert's testimony. (Def.'s Response Br., 5 (Oct. 14, 2005). It is well established that the factors for determining admissibility of expert testimony set forth in Daubert constitute a non-exclusive list of items district courts may consider. See e.g. O'Conner v. Commonwealth Edison Co., 13 F.3d 1090 (7th Cir. 1994). Admittedly, in cases involving "soft" sciences, such as psychology, the factors set forth in Daubert may have little relevance to determinations of admissibility. However, by the express holding of the Supreme Court in Kuhmo Tire Co .v. Carmichael, 526 U.S. 137
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(1999), the gatekeeping function of the trial courts as to expert testimony is required prior to the admission of all expert testimony, including psychologists. " We ...believe that [Daubert] applies to all expert testimony. Id. at 147. This Court should follow the binding authority of Daubert, 509 U.S. 579, and Kuhmo Tire, 526 U.S. 137, rather than the Eighth Circuit's dicta cited by the Defendant. (Def.'s Response Br., 5). II. DR. DeWITT'S QUALIFICATIONS AS AN EXPERT IN PSYCHOLOGY ARE NOT IN DISPUTE The Defendant needlessly spends time expounding on the qualifications of Dr. DeWitt. (Def.'s Response Br. 6-7). The Plaintiff has no challenged her opinions based on a lack of qualifications as a psychological expert. The Plaintiff also does not dispute that Dr. DeWitt reviewed "voluminous" documents as described in her report and in the Defendant's Response Brief. (Id. at 7). Rather, Plaintiff's challenge is to reliability and methodology. III. DR. DeWITT'S METHODOLOGY IS UNRELIABLE AND UNACCEPTABLE AND HER OPINIONS ARE NOT BASED ON SUFFICIENT FACTS. The first requirement for expert opinion testimony is that it is based on sufficient facts or data. The Court must ensure the expert's testimony rests on a "reliable foundation", Daubert, 509 U.S. at 597, and not based on "subjective belief or unsupported speculation." O'Conner, 13 F.3d at 1106. Expert witness testimony is inadmissible, even if it is based on sufficient facts, if the methods employed are not acceptable and reliable methods or if those methods have not been applied in a reliable and accepted manner. FRE 702. In O'Conner, although the proffered expert testimony was based on sufficient research and observations, the methods used by the expert physician were not sufficiently accepted
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methods and were supported by others in his field, and therefore, the expert's testimony was inadmissible. 13 F.3d at 1107. The Defendant has not cited any substantial authority in support of its assertion that Dr. DeWitt's methods are reliable or generally accepted in her field of expertise. The Defendant erroneously argues that McKenzie v. Benton, 388 F.3d 1342 (10th Cir. 2004), stands for the proposition that psychologists may testify even if they have not personally observed the Plaintiff. (Def.'s Response Br., 7). There the psychologist was not offering any testimony regarding the Plaintiff's behavior but, rather about the reasonableness of the sheriff's department's refusal to re-hire the Plaintiff after she had used a work-issued gun to shoot at her father's grave, had mutilated herself, and attempted suicide. McKenzie, 388 F.3d 1342. The expert's testimony was based on acts of the Plaintiff, and how others perceived the Plaintiff based on those acts. Id. Thus, examination of the Plaintiff would not elicit facts important to the opinions held. In contrast, here the psychologist who has never examined the Plaintiff is expected to testify as to the Plaintiff's behavior and acts and the reasonableness of those acts. As explained in the Plaintiff's Brief in Support of Motion in Limine, Dr. DeWitt's opinions are based on her subjective beliefs and unsupported speculation. This type of opinion testimony is not supported by McKenzie or any other case law of which the Plaintiff is aware. The Defendant also argues Dr. DeWitt's method of evaluating the Plaintiff without actually observing him is an accepted method, and cites the American Psychological Association's Ethical Principles of Psychologists and Code of Conduct,

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2002, Section 9.01(a)1. This section requires that opinions be based "on information and techniques sufficient to substantiate their findings." (Def.'s Response Br. 8-9). However, as discussed in the Plaintiff's Brief in Support of Motion in Limine, §9.01(b) of the APA Code states, "psychologists provide opinions of the psychological characteristics of individuals only after they have conducted an examination of the individuals adequate to support their statements or conclusions. When, despite reasonable efforts, such an examination is not practical, psychologists document the efforts they made and the result of those efforts, clarify the probable impact of their limited information on the reliability and validity of their opinions, and appropriately limit the nature and extent of their conclusions or recommendations." (Emphasis added). AVH has not documented the efforts nor the impact. Just saying that a volume of documents were reviewed does not satisfy this requirement. AVH has not provided authority for the proposition that Dr. DeWitt's method of evaluation without personally examining Dr. Bramlet is a reliable or generally accepted method of examination in her field of expertise. Rather, Dr. DeWitt's method is directly contrary to the methods described in the APA Code, as discussed in the Plaintiff's Brief in Support of Motion in Limine. Her testimony does not meet the standards for admissibility set forth in FRE 702 and Daubert. IV. DR. DeWITT'S TESTIMONY WILL NOT AID THE JURY IN DETERMINING ANY RELEVANT ISSUE. Finally, AVH argues Dr. DeWitt's opinions will somehow aid the jury in

It appears that both parties agree that the APA has promulgated the standard for expert forensic psychological opinions.
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determining a relevant issue. (Def.'s Response Br., 12-13). Expert testimony is only admissible where the facts are not within the common knowledge or experience of the jury. See, Francis v. Southern Pac. Co.,162 F.2d 813 (10th Cir. 1947); Salem v. U.S. Lines Co., 307 U.S. 31 (1962). Plaintiff has already addressed the irrelevancy of these opinions in his opening brief. As discussed in the Plaintiff's Brief in Support of Motion in Limine, the jury is better able to assess Dr. Bramlet's behavior than is Dr. DeWitt, as the jury will actually see and hear Dr. Bramlet in court, unlike Dr. DeWitt, whose entire report is based on things she never actually heard or saw. Dr. DeWitt's opinions regarding Dr. Bramlet's personality and behavior traits are not beyond the common knowledge of an average layperson. Rather, the average layperson has the ability to ascertain whether a person possesses those traits and qualities Dr. DeWitt has described Dr. Bramlet as having. See United States v. Webb, 625 F.2d 709, (5th Cir. 1980); Sanseverino v. U.S., 321 F.2d 714, 716 (10th Cir. 1963). CONCLUSION Dr. DeWitt's opinion testimony should not be allowed. LEAVENWORTH & KARP, P.C. By: /s Sander N. Karp, Esq. 201 14th Street, Suite 200 P. O. Drawer 2030 Glenwood Springs, CO 81602 Phone (970) 945-2261 [email protected] Attorneys for Plaintiff

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CERTIFICATE OF SERVICE I hereby certify that on the 31st day of October, 2005, I electronically filed the foregoing PLAINTIFF'S REPLY BRIEF IN SUPPORT OF MOTION IN LIMINE TO EXCLUDE TESTIMONY OF DEFENDANT'S EXPERT WITNESS DIANE W. DEWITT, PH.D with the Clerk of Court through CM/ECF system which will send notification of such filing to the following e-mail addresses: Colleen Rea, Esq. Ford & Harrison, LLP 1675 Broadway, Suite 2150 Denver, CO 80202 [email protected]

s/ Sander N. Karp Sander N. Karp

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