Free Response to Motion - District Court of Colorado - Colorado

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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.

RESPONSE TO PLAINTIFF'S MOTION IN LIMINE TO EXCLUDE TESTIMONY OF DIANE W. DEWITT, Ph.D.

Defendant Aspen Valley Hospital District (the "Hospital") respectfully submits this Response to Plaintiff's Motion in Limine to Exclude Testimony of Diane W. DeWitt, Ph.D ("Response"). This Response is based on the following: I. INTRODUCTION AND BACKGROUND

Plaintiff is a cardiologist who chose to move to Aspen, Colorado, after he was asked to leave his former medical group in Florida. As Plaintiff had signed a non-compete agreement with the Florida medical group, he was unable to practice medicine there for a period of two years. Plaintiff's spouse, also a physician, had obtained a job in Aspen prior to their move, but Plaintiff had not. Although Plaintiff had been involved in negotiations with Dr. Morris Cohen to join his cardiology practice, the negotiations failed after Plaintiff had already moved to Aspen and no agreement was ever reached.

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The Hospital is a public hospital that serves the community of Aspen, Colorado, and its environs. Plaintiff applied for provisional medical staff privileges at the Hospital and the

Hospital granted his application shortly after his arrival in Aspen. Toward the close of his provisional medical staff privileges year, Plaintiff applied for active medical staff privileges at the Hospital. Because Aspen is a resort community, medical professionals often try to obtain medical staff privileges at the Hospital with the intent of practicing there on a less than full-time basis. Such itinerant physicians do not satisfy the Hospital's need to provide adequate medical staffing to meet the community's medical needs on a year-round basis. Accordingly, the

Hospital has a two-pronged residency requirement that must be met to obtain active medical staff privileges: (1) the physician must reside in Aspen, Colorado; and (2) the physician must be present in Aspen, Colorado, for at least nine months, available to meet the needs of the Hospital and the community it serves. Because Plaintiff had frequently been absent from the Aspen area during his provisional year, including absences that he attributed to academic endeavors and lecturing on behalf of pharmaceutical companies, the Hospital was concerned that he did not meet the second prong of the residency requirement. Therefore, the Hospital asked Plaintiff to provide additional

documentation to establish that he met the second prong of the residency requirement. One option the Hospital provided to Plaintiff was the option of providing a handwritten list describing when and for what purposes he had been absent from the Aspen area during his provisional year. The Hospital also gave Plaintiff the opportunity to request a waiver of the nine-month requirement to the extent his time away had been for academic purposes.

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Rather than providing the requested additional documentation, Plaintiff advised the Hospital on April 5, 2000: "I cannot fulfill my responsibilities as a staff physician" because "I have decided to pursue my academic endeavors extensively, which will require frequent travel out of the [Aspen area]," and requested a 12-month leave of absence. Three weeks later, Plaintiff withdrew his request for a leave of absence, withdrew his request for active medical staff privileges, and requested consulting medical staff privileges instead. One week later, on May 5, 2000, Plaintiff again requested a leave of absence, stating that: "Due to family medical reasons, I cannot fulfill the responsibilities of continued provisional medical status." On May 8, 2000, the Hospital granted Plaintiff's request for a twelve-month leave of absence. Thereafter, the Hospital notified Plaintiff that: (1) his request for consulting medical staff privileges had been denied; (2) he had the right to appeal the denial; and (3) his request to terminate his leave of absence had been granted. Plaintiff chose not to appeal the denial of his application for consulting medical staff privileges. As Plaintiff had withdrawn his application for active medical staff privileges, the Hospital never denied or granted that application. At the time Plaintiff requested his leave of absence, Plaintiff was the only practicing cardiologist in Aspen because the other Aspen cardiologist, Dr. Cohen, had retired in the fall of 1999. This prompted the Hospital to begin an urgent search to recruit a cardiologist who could meet the community's cardiology needs. To aid the recruitment effort, the Hospital decided to offer an exclusive contract to provide cardiology services at the Hospital. At Plaintiff's request, the Hospital considered Plaintiff for the cardiology contract, but ultimately awarded the contract to another cardiologist, Dr. Gordon Gerson. Plaintiff then moved home to Florida, where he was once again able to practice cardiology because his two-year non-compete agreement had expired.

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II.

STANDARD OF REVIEW

Rule 702 of the Federal Rules of Evidence states: 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. Rule 702 requires the district court to serve as a "gatekeeper" to ensure that expert testimony is both relevant and reliable. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993); Bitler v. A.O. Smith Corp., 391 F.3d 1114, 1119 (10th Cir. 2004). This obligation involves a two-part inquiry: (1) whether the reasoning or methodology underlying the expert's testimony is valid; and (2) whether the testimony is "relevant to the task at hand." Daubert, 509 U.S. at 592-93, 597. The Daubert opinion "applies only to the qualifications of an expert and the methodology used to render an expert opinion." United States v. Lauder III, 409 F.3d 1254, 1264 (10th Cir. 2005). Daubert does not regulate the underlying facts or data that an expert relies upon when forming his opinion. Lauder III, 409 F.3d at 1264; Fed. R. Evid. 703 (expert may base his opinion or inferences on facts or data "perceived by or made known to the expert at or before the hearing;" the issue of "`sufficient facts or data' calls for a quantitative rather than a qualitative analysis."); Fed. R. Evid. 702. Expert testimony need not be based upon personal examination. Fed. R. Evid. 703; Daubert, 509 U.S. at 592 ("[A]n expert is permitted wide latitude to offer opinions, including those that are not based on firsthand knowledge or observation."); United States v. Vallejo, 237 F.3d 1008, 1021 (9th Cir. 2001) (psychologist's testimony admissible even though he did not personally examine the defendant); McKenzie v. Benton, 388 F.3d 1342, 1347, 1350-51 (10th Cir.

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2004). An expert may rely upon information from other professionals or other facts that are reasonably relied upon by experts in his field, even if the information is otherwise inadmissible. Fed. R. Evid. 703; Walker v. Soo Line Railroad, 208 F.3d 581, 588-89 (7th Cir. 2000). Expert testimony is admissible if it addresses an issue beyond the common knowledge of the average layperson, is presented by a witness having sufficient expertise, and asserts a reasonable opinion given the state of the pertinent art or scientific knowledge. Vallejo, 237 F.3d at 1019. "The rejection of expert testimony is the exception rather than the rule." Burton v. R.J. Reynolds Tobacco Company, 183 F.Supp.2d 1308, 1311 (D. Kan. 2002), citing Fed. R. Evid. 702 advisory committee notes. The non-exclusive list of factors outlined in Daubert, which are most directly relevant to assess scientific or technological testimony, were never intended to constitute "a definitive checklist or test." Daubert at 590-593; Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999) (Daubert factors are non-exclusive; court's goal is to ensure expert witness employs intellectual rigors of his relevant field of expertise). Indeed, there is some question: whether the Daubert analysis should be applied at all to "soft" sciences such as psychology, because there are social sciences in which the research, theories and opinions cannot have the exactness of hard science methodologies. Jenson v. Eleventh Taconite Company, 130 F.3d 1287, 1297 (8th Cir. 1997) (holding psychological testimony admissible). Therefore, the trial judge has "considerable leeway" to decide, in a particular case, "how to go about determining whether particular expert testimony is reliable." Kumho, 526 U.S. at 152.

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III. A.

LEGAL ARGUMENT

The Expert Reports of Dr. Shahnasarian and Dr. DeWitt Plaintiff's expert witness, Michael Shahnasarian, Ph.D, a psychologist and vocational

expert, prepared a Vocational Evaluation report on October 1, 2004 ("Dr. Shahnasarian's Report"). See Declaration of Dr. DeWitt ("Declaration"), attached as Exhibit 1, at Exhibit D. In his Report, Dr. Shahnasarian opines that Plaintiff's decision to pursue his career development in Colorado, and his efforts to mitigate his vocational damages upon his return to Florida, were reasonable. Dr. Shahnasarian also describes his methodology and the bases for his opinions. Dr. Shahnasarian's Report includes a discussion of Dr. Shahnasarian's interview with Plaintiff, Dr. Shahnasarian's assessment of Plaintiff's behavior, and the various documents Dr. Shahnasarian reviewed in connection with preparing his Report. Exhibit D. On January 5, 2005, Diane W. DeWitt, Ph.D., also a psychologist and vocational expert, prepared a Forensic Analysis, Psychological & Vocational Issues ("Dr. DeWitt's Report"). Declaration, at Exhibit B. Dr. DeWitt's current curriculum vitae demonstrates her extensive qualifications and experience as a psychologist and vocational expert. Declaration, at Exhibit A. In her Report, Dr. DeWitt opines, based on her experience as a vocational expert and psychologist, and to a reasonable probability of professional certainty, that: (1) Plaintiff's actions when he relocated to Aspen in 1998, and when he returned to Florida in 2000, to live and practice medicine, were not reasonable; and (2) Plaintiff did not make reasonable efforts to mitigate the damages he alleges in this case. Exhibit B at 23-24. Dr. DeWitt describes her methodology and the bases for her opinions, which include her assessment of Plaintiff's behavior and the hundreds of pages of documents she reviewed in connection with preparing her Report.

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Exhibit B at 1-24. The documents Dr. DeWitt reviewed were voluminous and included, among other things, Dr. Shahnasarian's Report, Dr. Shahnasarian's deposition testimony, Plaintiff's two-day deposition in this case (including deposition exhibits), Plaintiff's deposition in a case he filed in Florida, and hundreds of pages of other documents, including Plaintiff's written correspondence with the Hospital regarding his applications for medical staff privileges, Plaintiff's affidavit (and attached exhibits), Plaintiff's discovery responses in this case, the Hospital's discovery responses in this case, Hospital bylaws and policies, Hospital board minutes and committee notes, Plaintiff's correspondence with medical groups and hospitals in Florida, Plaintiff's curriculum vitae, and the depositions of Dr. Gerson and Dr. Cohen in this case. Declaration, at Exhibit C. B. Dr. DeWitt's Testimony Meets the Requirements of Daubert Plaintiff does not challenge Dr. DeWitt's qualifications as psychologist and vocational expert. Plaintiff's sole Daubert challenge relates to Dr. DeWitt's methodology, which Plaintiff asserts is unreliable. Yet, Plaintiff's sole basis for attacking Dr. DeWitt's methodology rests on his attorney's legal conclusion that Dr. DeWitt's methodology was unethical because she did not personally interview Plaintiff. Significantly, as addressed above, expert testimony need not be based upon personal physical examination and an expert may rely upon information from other professionals or other facts that are reasonably relied upon be experts in his field. Fed. R. Evid. 703; Daubert, 509 U.S. at 592 ("[A]n expert is permitted wide latitude to offer opinions, including those that are not based on firsthand knowledge or observation."). Specifically, a psychologist's testimony is not required to be based on personal examination in order to be admissible. McKenzie v. Benton,

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388 F.3d 1342, 1347, 1350-51 (10th Cir. 2004); Vallejo, 237 F.3d at 1021; Walker, 208 F.3d at 588-89.1 A psychologist's failure to personally examine a subject goes to the weight of the testimony, not its admissibility. Vallejo, 237 F.3d at 1021; McKenzie, 388 F.3d at 1351; Burton, 183 F.Supp.2d at 1313 (doctor's failure to examine subject goes to the weight of his testimony and may be adequately addressed on cross-examination); see also Walker v. Soo Line Railroad, 208 F.3d 581, 589 (7th Cir. 2000) (to degree expert "might have relied on faulty information, the matter certainly could be explored on cross-examination"). Thus, Plaintiff's argument that Dr. DeWitt did not interview him goes to the weight, not the admissibility, of her testimony, and Plaintiff may properly address such concerns via cross-examination. Dr. DeWitt has provided evidence that her methodology meets the standards of her professions for the type of forensic report she provided, and that the information she relied upon as the bases for her conclusions and opinions is information commonly relied upon by other experts in her fields of expertise. Declaration at ¶¶ 4-6. Dr. DeWitt was not engaged to counsel or treat Plaintiff, but to provide a forensic report.2 This represents a core distinction between the ethical standards reflected in the American Psychological Association's Ethical Principles of Psychologists and Code of Conduct, 2002 ("Code"). For example, sections 3.07 and 9.01(c) of the Code provide authority for psychologists to provide forensic consultation reports without personally examining the subject individual. Section 9.01(a) of the Code simply specifies that a
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Plaintiff's assertion that there was no request made for Dr. DeWitt to interview him is mistaken. Plaintiff's counsel advised undersigned counsel that such an interview would be opposed. Given the logistical distance between Plaintiff's home in Florida and Dr. DeWitt's residence in the State of Washington, a personal interview was also cost-prohibitive. Moreover, Dr. Shahnasarian interviewed Plaintiff and Dr. DeWitt had access to Dr. Shahnasarian's Report. Unless Plaintiff contends that he would have provided Dr. DeWitt with information different than that he provided to Dr. Shahnasarian, another interview would have been largely duplicative. Thus, any information that may be or have been on her website relating to assessments for purposes of vocational counseling and treatment does not apply here.

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psychologist's opinions should be based "on information and techniques sufficient to substantiate their findings." Code at 9.01(a). Here, Dr. DeWitt has confirmed that the

information and techniques utilized in preparing her Report are sufficient to substantiate the findings and conclusions contained in her Report. Declaration at ¶ 4-6. Testimony based on an expert's "observations of typical characteristics drawn from many years experience interviewing many, many persons" is admissible. Vallejo, 237 F.3d at 1021; Sementilli v. Trinidad Corp., 155 F.3d 1130, 1134 (9th Cir. 1998) (expert's knowledge, experience, training and education and review of subject's medical records sufficient basis for expert opinion). Here, Dr. DeWitt analyzed the role that Plaintiff's demonstrated behavioral characteristics played in undermining his vocational efforts based upon "observations of typical characteristics drawn from many years experience interviewing many, many persons." A, B & C. Dr. DeWitt analyzed the actions Plaintiff took and the words and behaviors he employed in his quest to obtain medical staff privileges and positions, both at the Hospital in Aspen and, after his returned to Florida, various hospitals and medical groups in Florida. Dr. DeWitt's analysis included her review of Dr. Shahnasarian's Report and Dr. Shahnasarian's deposition testimony. Dr. Shahnasarian's Report includes a discussion of his interview with Plaintiff, his assessment of the vocational reasonableness of Plaintiff's behavior, and the various documents he reviewed. Dr. DeWitt also analyzed several days of Plaintiff's own deposition testimony, in which he explained his actions and behaviors and his rationale for his actions and behaviors, as well as Plaintiff's written correspondence with the Hospital in Aspen and with groups and hospitals in Florida. Exhibit C. Thus, Plaintiff's contention that Dr. DeWitt's opinions are based Exhibits

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solely on her review of Plaintiff's deposition testimony is erroneous. Plaintiff's contention that his deposition testimony is somehow rendered useless because it was "obviously taken in an adversarial context" is equally unsupported by any authority. Plaintiff's Motion in Limine at 7. Indeed, even Dr. Shahnasarian reviewed and considered Plaintiff's deposition as part of his analysis. Exhibit D at 1. In his Report, Dr. Shahnasarian concludes that "the career-related difficulty he [Plaintiff] has had appears to be a function of interpersonal/employment issues. . . ." Exhibit D at 3. Dr. DeWitt's Report simply expands upon Dr. Shahnasarian's own conclusion that Plaintiff's career problems result from interpersonal issues, by analyzing the impact of Plaintiff's own actions and behavioral characteristics on his vocational endeavors. In her Report, Dr. DeWitt provides examples of information that supports her various conclusions and opinions. Exhibit B, generally. Plaintiff could have deposed Dr. DeWitt to inquire about other examples or even all of the examples upon which she based her conclusions and opinions. He chose not to do so. Yet, Plaintiff now challenges the reliability of Dr.

DeWitt's methodology by citing her examples as though they represent the sole basis for each of her conclusions and opinions. Plaintiff should not be permitted to obtain through Daubert that which he elected not to obtain through discovery. Plaintiff's attack on Dr. DeWitt's assessment of the vocational differences between pursuing a cardiology practice in Aspen, Colorado, versus St. Petersberg, Florida, is equally baseless. In his Report, Dr. Shahnasarian reflects that he conducted research relating to this very distinction and, based on that research, concluded that Aspen is a small community "where informal networks are more prevalent," and that Aspen has a smaller population that is isolated

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and rural. Dr. Shahnasarian's Report at 3-4. Dr. DeWitt relied on this information, as well as her own vocational familiarity with the same rural versus metropolitan distinctions, as a basis for her conclusions and opinions. The cases upon which Plaintiff relies to support his contention that Dr. DeWitt's testimony does not comply with Daubert's requirements are inapposite. In Hall, the court refused to permit a "licensed professional counselor" to opine that the plaintiff was mentally incompetent. Hall v. United Insurance Company of America, 367 F.3d 1255, 1261-62 (11th Cir. 2004). The court concluded that the counselor had not demonstrated that he possessed the qualifications necessary to render such an opinion, and precluded the counselor from disagreeing with the plaintiff's medical doctor, who had opined the plaintiff was competent, based solely on the counselor's review of the medical doctor's report. Id. The Wilson case is equally inapposite and, further, is not controlling in this jurisdiction. There, the court reversed the trial court's decision to allow a psychologist to render a psychiatric evaluation of a criminal defendant based solely on courtroom observations of the defendant's trial testimony. People v. Wilson, 133 A.D. 2d 179, 183 (N.Y. App. Div. 1987). Here, Dr. DeWitt has not attempted to render a psychiatric opinion. Moreover, Dr. DeWitt's conclusions, as addressed above, are amply based upon her review and analysis of a substantial volume of information typically relied upon by others in her field to render the type of report she has made. Lastly, Plaintiff attacks the reliability of Dr. DeWitt's report based on her lack of citation to scientific methodology or literature. In the social science arena, which includes the realm of psychologists and vocational experts, citation to scientific methodology and literature is generally inapposite. See Jenson, 130 F.3d at 1297 (application of Daubert criteria to "soft"

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sciences, such as psychology, in question because social sciences research, theories and opinions cannot have the exactness of hard science methodologies); Kumho, 526 U.S. at 152 (Daubert factors not an exclusive checklist and trial judge has "considerable leeway" to decide "how to go about determining whether particular expert testimony is reliable"). Notably, Dr. Shahnasarian's Report also fails to cite any scientific methodology or literature. As such, his testimony would also require exclusion if failure to cite scientific methodology or literature were required. Dr. DeWitt's Report describes the information she reviewed and considered, the manner in which she analyzed that information, and her bases for the conclusions and opinions she reached. Coupled with her qualifications and experience, such an accounting of her methodology meets Daubert's reliability standard. Moreover, Plaintiff could have inquired into such matters by taking Dr. DeWitt's deposition, but elected not to do so. Plaintiff may also address such matters through cross-examination at trial. C. Dr. DeWitt's Report Will Assist the Jury and Is Not Prejudicial Expert testimony is admissible if it addresses an issue beyond the common knowledge of the average layperson, is presented by a witness having sufficient expertise, and asserts a reasonable opinion given the state of the pertinent art or scientific knowledge. Vallejo, 237 F.3d at 1019. Dr. DeWitt possesses knowledge and expertise as a psychologist and vocational expert that is beyond the common knowledge of the average layperson. Exhibit A. Her extensive qualifications and vast experience, which Plaintiff does not dispute, enable her to describe and explain the role that Plaintiff's behaviors and actions played in creating the vocational outcomes about which he now complains, the vocational unreasonableness of the steps Plaintiff has taken in pursuing his career goals in Aspen and Florida, and the vocational unreasonableness of

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Plaintiff's efforts to mitigate his alleged damages. Dr. DeWitt's testimony is directly relevant to the issues at hand in this case and will assist the jury in understanding the manner in which Plaintiff's own actions impacted his vocational efforts. Fed. R. Evid. 401 & 402. The scope of Dr. DeWitt's testimony does not differ from that of Plaintiff's own expert, Dr. Shahnasarian---the two experts simply reach different conclusions and opinions based on the same facts. Dr. Shahnasarian concludes that Plaintiff's actions and behaviors were vocationally reasonable. Dr. DeWitt concludes that they were not. Thus, if Dr. DeWitt's testimony is deemed inadmissible under Rule 403, Dr. Shahnasarian's testimony would be equally inadmissible. Plaintiff's reliance on Webb is misplaced. There, the court upheld the exclusion of expert testimony that the criminal defendant was "a peaceable and non-violent person." United States v. Webb, 625 F.2d 709, 711 (5th Cir. 1980). The court determined that such testimony failed to meet the requirements of evidence rule 702, because the defendant was attempting to use the testimony to demonstrate that violent actions at the time of the alleged shooting incident would have been inconsistent with his peaceable, non-violent character. Id. No such facts are at issue in this case. Here, Dr. DeWitt simply offers an analysis and explanation of Plaintiff's past behavior and the impact such behavior has had on Plaintiff's vocational endeavors. Moreover, Fifth Circuit precedent is not controlling in this jurisdiction. Similarly, the Sanseverino case is inapplicable here. The case addressed lay character testimony based on personal endorsement, rather than familiarity with the defendant's reputation. Sanseverino v. United States, 321 F.2d 714, 716 (10th Cir. 1963). Lay witness testimony is not at issue here. Further, even if the case related to expert testimony, the case would no longer be

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applicable because it was decided twenty years before the Supreme Court's decision in Daubert. Id. IV. CONCLUSION

Based on the foregoing, the Hospital requests that the Court deny Plaintiff's Motion in Limine. In the alternative, the Hospital requests that the Court set a time and date for an evidentiary hearing on Plaintiff's Motion in Limine prior to the trial of this matter in June 2006. If the Court determines that Dr. DeWitt's testimony cannot be admitted unless she interviews Plaintiff, the Hospital further requests that Dr. DeWitt be permitted to interview Plaintiff at a mutually amenable time and date between now and the scheduled trial date in June 2006, and to supplement her report thereafter, as may be appropriate. As the trial of this case is nine months away, Plaintiff would not be prejudiced by permitting Dr. DeWitt to interview him and supplement her report, as needed. Respectfully submitted this 14th day of October, 2005.

s/Colleen M. Rea Colleen M. Rea, Esq. #024960 FORD & HARRISON LLP 1675 Broadway, Suite 2150 Denver, CO 80202 Telephone: (303) 592-8860 Facsimile: (303) 592-8861 ATTORNEYS FOR DEFENDANT ASPEN VALLEY HOSPITAL DISTRICT

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CERTIFICATE OF MAILING I hereby certify that on this 14th day of October, 2005, I electronically filed the foregoing RESPONSE TO MOTION IN LIMINE TO EXCLUDE TESTIMONY OF DIANE W. DEWITT, PH.D., with the Clerk of Court through the CM/ECF system, which will send notification of such filing to the following e-mail addresses: Sander N. Karp, Esq. Teresa L. Hock, Esq. Leavenworth & Karp, P.C. 201 14th Street, Suite 200 P. O. Box 2030 Glenwood Springs, CO 81602 Email: [email protected]

s/ Colleen M. Rea Colleen M. Rea, (#024960 Ford & Harrison LLP 1675 Broadway, Suite 2150 Denver, CO 80202 Telephone: (303) 592-8860 Facsimile: (303) 592-8861 E-mail: [email protected] ATTORNEYS FOR DEFENDANT ASPEN VALLEY HOSPITAL DISTRICT
Denver:10113.1

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