Free Motion in Limine - 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 MOTION IN LIMINE TO EXCLUDE TESTIMONY OF DEFENDANT'S EXPERT WITNESS DIANE W. DEWITT, PH.D __________________________________________________________________ Plaintiff Dean Bramlet, M.D., by and through his attorneys respectfully moves this Court for its Order, pursuant to F.R.E. 403 and 702, excluding the testimony of defense expert witness Diane W. DeWitt, Ph.D ("Dr. DeWitt"). Plaintiff is not unaware of the Court's preference for motions in limine being filed 45 days prior to the final pretrial conference (Trial Preparation Order, ¶ F.), but believes resolution of this motion will assist the parties in evaluation of their claims. In support of this motion, Plaintiff states as follows: CERTIFICATE OF COMPLIANCE WITH D.C.COLO.LCIVR 7.1 Counsel for Plaintiff hereby certifies that he has conferred with opposing counsel regarding this motion, and counsel for Defendant Aspen Valley Hospital ("AVH") opposes the relief requested herein. INTRODUCTION AND BACKGROUND Defendant has precluded Dr. Bramlet from practicing medicine at its hospital ("AVH") in Aspen. Dr. Bramlet moved from Florida to Aspen in 1998 to set up a cardiology 1

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practice, relying on promises from the then CEO of AVH, Randy Middlebrook, and the only other cardiologist in the community, Dr. Morris Cohen, that he would be offered a practice development loan. These promises were not kept. Over the course of the next two years, AVH engaged in a pattern of conduct that had the result of driving Dr. Bramlet out of town. It disregarded its own bylaws throughout the privileging process to prevent Dr. Bramlet from becoming a member of either the active or consulting staff; it hired a younger, less qualified cardiologist under an exclusive contract to provide all cardiology services at AVH although Dr. Bramlet applied for the position; and it defamed him. Dr. Bramlet now brings claims for violations of 42 U.S.C. § 1983, for deprivation of property and liberty rights; violation of the Age Discrimination in Employment Act ("ADEA"); and for breach of contract. During discovery, Dr. Bramlet disclosed Mike Shahanasarian, Ph.D., a vocational placement expert. Dr. Shahanasarian personally met and conversed with Dr. Bramlet on several occasions and he reviewed pertinent documentation. Having obtained this

background information, Dr. Shahanasarian issued an expert report in which he addressed both the reasonableness of Dr. Bramlet's initial decision to move to Aspen as well as his mitigation of loss efforts Defendant subsequently disclosed Dr. DeWitt as a rebuttal expert witness. See Report of Dr. DeWitt, Exhibit 1, at pp. 4-5. In her report, Dr. DeWitt inappropriately renders opinions regarding Dr. Bramlet's personality traits and characteristics based exclusively on her review of Dr. Bramlet's deposition testimony. She has never met Dr. Bramlet in person or spoken with him over the phone, and based on her report, she has never spoken with 2

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a single person who knows Dr. Bramlet. Essentially, Dr. DeWitt opines that Dr. Bramlet's situation at AVH, and his current employment situation in Florida, resulted from his personality traits as opposed to any conduct of the Defendant. Based solely on a review of the transcript from Dr. Bramlet's deposition, Dr. DeWitt labels him "arrogant," "deceptive," "uncooperative," and "presumptuous," among other behavioral descriptions. See Ex. 1 at pp. 13-16. She then goes on to extrapolate that because of these "traits," Dr. Bramlet (1) lacked foresight and acceptable interpersonal behaviors to relocate to Aspen; (2) failed to learn from his previous behavioral mistakes and "impulsively" moved back to Florida where he continues to display unacceptable interpersonal behaviors that prevent his professional success; and (3) failed to mitigate his damages as a result of his poor level of interpersonal skills and comprehension of what is professionally expected of him. See Ex. 1 at pp. 23-24. Dr. DeWitt's opinions fall outside those properly within the realm of expert testimony defined by F.R.E. 702, her opinions are not based on generally accepted scientific, technical, or other specialized knowledge or methods, and her testimony is more prejudicial than probative under F.R.E. 403. Accordingly, Plaintiff respectfully moves the Court to exclude her testimony in its entirety. STANDARD OF REVIEW A trial court has not only the power, but the obligation, to act as gatekeeper where admissibility of expert testimony is in question. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589, 113 S.Ct. 2786, 2795, 125 L.Ed.2d 469 (1993). The burden of establishing the proper foundation for the admissibility of expert testimony is on the party offering the expert, and the admissibility of the testimony must be shown by a 3

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preponderance of the evidence. Hall v. United Insurance Company of America, 367 F.3d 1255, 1261 (11th Cir. 2004) (quoting Alllison v. McGhan Medical Corp., 184 F.3d 1300, 1306 (11th Cir. 1999)). F.R.E. 702 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, 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. "[T]he word `knowledge' connotes more than subjective belief or unsupported speculation." Daubert, 509 U.S at 590, 113 S.Ct. at 2795. F.R.E. 403 states: Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. Expert witness testimony can be both powerful and misleading because of the difficulty in evaluating such testimony. Because of this, the trial court must exercise more control over expert witness testimony than lay witness testimony when weighing evidence under F.R.E. 403. Daubert, 509 U.S. at 595, 113 S.Ct. at 2798 (quoting Rule 702 of the Federal Rules of Evidence is Sound; It should not be Amended, Judge Jack B. Weinstein, 138 F.R.D. 631, 632 (1991)). ARGUMENT I. DR. DEWITT'S TESTIMONY IS NOT BASED ON A RELIABLE OR VALID METHOD. Dr. DeWitt's opinion, as set forth in her report, consists solely of a review of discovery documents, and most importantly, a review of deposition transcripts. She has 4

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never met Dr. Bramlet, nor has she ever had the opportunity to personally observe or interact with Dr. Bramlet in the work place, or any other place for that matter. Indeed, while the bulk of Dr. DeWitt's testimony consists of an analysis of Dr. Bramlet's behavioral characteristics, her only basis for observation comes from reading deposition transcripts. These depositions were not taken by video, and thus, Dr. DeWitt has never had the opportunity to gauge Dr. Bramlet's body language, tone of voice, demeanor, facial expressions, or any other non-verbal communication during these depositions. There was never a request by Defendant to allow Dr. DeWitt to examine Dr. Bramlet. In addition, while Dr. DeWitt reviewed deposition transcripts of other witnesses in this litigation, she has never personally interviewed these other witnesses as to Dr. Bramlet, his character traits, reputation, or behavior. See generally Ex. 1. Despite these unreliable methods, Dr. DeWitt repeatedly relies on her assessment of Dr. Bramlet's personality traits and interpersonal behaviors and skills as the basis for her opinions. This analysis falls outside that contemplated by F.R.E. 702, and, accordingly, Dr. DeWitt's opinions should be excluded. The American Psychological Association ("APA"), of which Dr. DeWitt is a member, has issued Ethical Principles of Psychologists and Code of Conduct ("Ethics Code"). The Ethics Code sets forth enforceable rules of conduct for psychologists, including those in a forensic, or expert witness, role. See APA Ethics Code 2002, Exhibit 2 at p. 2. Several of the Ethical Standards in the Ethics Code apply here, and set forth the acceptable, and ethical, methods psychologists should use to reach their conclusions and opinions. E.g., Ethical Standard 9.01 states: (a) Psychologists base the opinions contained in their recommendations, 5

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reports, and diagnostic or evaluative statements, including forensic testimony, on information and techniques sufficient to substantiate their findings. (b) Except as noted in 9.01c, 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. When psychologists conduct a record review or provide consultation or supervision and an individual examination is not warranted or necessary for the opinion, psychologists explain this and the sources of information on which they based their conclusions and recommendations.

(c)

Ex. 2, APA Ethics Code 2002 at p. 13 (emphasis supplied and internal citations omitted). Similarly, the American Academy of Forensic Psychology, also an organization with which Dr. DeWitt is affiliated, has endorsed the Specialty Guidelines for Forensic Psychologists. These guidelines state: Forensic psychologists avoid giving written or oral evidence about the psychological characteristics of particular individuals when they have not had an opportunity to conduct an examination of the individual adequate to the scope of the statements, opinions, or conclusions to be issued. Forensic psychologists make every reasonable effort to conduct such examinations. When it is not possible or feasible to do so, they make clear the impact of such limitations on the reliability and validity of their professional products, evidence, or testimony. Forensic Specialty Guidelines, Law and Human Behavior, Vol. 15, No. 6 (1991), Exhibit 3 at § VI(H).

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Moreover, a review of Dr. DeWitt's web site1 confirmed her professional practice and apparent personal view that several meetings with a person is necessary to conduct an adequate vocational counseling assessment. On a section entitled "Vocational Services," Dr. DeWitt stated: I aim to find the answers you seek. The pace is fast and the experience can become intense even if we only meet weekly. The typical session schedule is once weekly unless your needs are urgent at any point during the time we are working together. Here, Dr. DeWitt has not employed standard and acceptable methods for conducting a forensic psychological assessment of Dr. Bramlet. Indeed, Dr. DeWitt has violated the ethical rules that govern her profession with regard to the opinions she stated in this case. In the section of Dr. DeWitt's report titled "Behavioral Observations," Dr. DeWitt states that "[p]sychologists commonly rely on behavioral observations as part of the factual data used in research, treatment, assessment, and forensic work." Ex. 2 at p. 13. She goes on to state that Dr. Bramlet's behavior is of central importance to her analysis. Id. However, Dr. DeWitt admits that her "primary source" for her observation of Dr. Bramlet's behavior is his July 2004 deposition. Upon a review of her report, it is clear that this deposition, obviously taken in an adversarial context, is not only the primary source, but is the only source for her opinions about Dr. Bramlet. Based on her limited and inappropriate review, Dr. DeWitt concludes that Dr. Bramlet is distressed, reactive, uncooperative, arrogant, confused, naive, obtuse, deceptive, feigning ignorance, inept, and presumptuous. Ex. 2 at pp. 13-16. As detailed

The following is based on counsel's review of the website. Subsequent to this review, and at the time of the preparation of this motion, counsel attempted to access the website and copy same. The languag e se t out he rein does not now a ppe ar on the site. Thus, w e are una ble to provide a copy of sam e.

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by the ethics rules above, an acceptable and reliable method within the forensic psychologist profession for coming to such conclusions would only be through an examination of Dr. Bramlet. Furthermore, even if Dr. DeWitt were to assert impracticality of examination as a basis for her limited review, there is no basis for such an assertion given that Dr. DeWitt made no request to examine Dr. Bramlet in person. Similarly, she fails to explain how the lack of personal interaction would limit her opinions. Indeed, Dr. DeWitt makes no mention of the nature of discovery depositions, nor the fact that such questioning takes place in the adversarial context of pending litigation, often in surroundings unfamiliar to the witnesses, and in what can be a stressful and emotionally charged environment. Dr. DeWitt does not attempt to explain how questioning under such circumstances can affect a person's behavior or demeanor nor does she compare such a setting to a typical Hospital, clinic, or physician practice setting. She makes no effort to analyze whether or not her inability to observe body language, tone of voice, facial expressions, or other non-verbal communication avenues places any limitations on her observations. Indeed, Dr. DeWitt made no attempt whatsoever to limit her testimony regarding her observation of Dr. Bramlet's personality in light of the fact that she never examined him. For instance, on page 14 of her report, Dr. DeWitt makes the following conclusion: During his deposition, when asked about keeping track of his nation-wide lectures, he arrogantly replied "I did not feel that it was necessary to fluff up my curriculum vitae. It already contains adequate supporting information without bragging." (Page 126, lines 2 to 5) [sic] This indicates, [sic] that Dr. Bramlet does not have a working knowledge of how to be fully functional in a social, cultural, and interpersonal professional world. He presents as a socially and emotionally arrogant, ignorant, disdainful, and dysfunctional individual.

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Ex. 2 at p. 14. Apparently, Dr. DeWitt is attempting to assert that her reading of a single line from a deposition transcript, without any opportunity to observe Dr. Bramlet, sufficiently supports her conclusion that Dr. Bramlet does not know how to be a fully functioning adult in the professional world. Despite the fact that she lacks a full complement of evaluation tools at hand (personal knowledge or personal observation), Dr. DeWitt makes conclusions assessing the core of Dr. Bramlet's personality. Her methodology falls far short of the acceptable standards for her profession. She states that Dr. Bramlet moved to Colorado based on a series of flawed assumptions, although she never mentions the content or context of these assumptions. Ex. 2 at p. 20. Dr. DeWitt merely states that Dr. Bramlet has worked in major metropolitan centers throughout his adult life presumably as the factual basis for her conclusion, "It appears to have been outside the range of possibility for Dr. Bramlet to adapt to a rural and small community environment in the Rocky Mountains." Id. She makes no reference to any scientific literature, professional, or personal experience supporting her apparent conclusion that working in metropolitan areas for an extended period of time would make it "outside the range of possibility" to adapt to a small and rural community. Dr. DeWitt failed to interview any Aspen community members or other physicians at AVH to understand the "rural" environment to which she concludes Dr. Bramlet could not have adapted. She repeatedly refers to the Aspen "medical culture" (page 22) and "local norms and culture" (page 23), but fails to describe or identify any aspect of those norms and culture, or her basis for ascertaining same. Similarly without support, she describes a medical practice at AVH as a "very different practice and living environment from that of the St. Petersburg area of Florida" (page 21). Dr. DeWitt does not claim to have visited 9

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either the Aspen or St. Petersburg areas, nor does she describe any personal observations of either the general or medical culture of either community. Instead, Dr. DeWitt again relies on her flawed evaluation to conclude that "Dr. Bramlet did not have the interpersonal skills or personal style to fit in culturally or professionally." Id. at p. 20. In the summary sentence of her report, Dr. DeWitt concludes that the personality traits she has identified are a "part of Dr. Bramlet" and that he has a problem of "stable and permanent personality traits and features" (page 22). In Hall v. United Insurance Company of America, 367 F.3d at 1258, the plaintiff representative of an estate brought a claim for benefits. The plaintiff offered expert testimony on the issue of whether or not the policy owner was mentally competent. Id. at 1261. The expert's opinion was based on a review of documents related to the policy owner's mental health, including statements made by the owner's attending physician, who had concluded that the owner was competent. The Eleventh Circuit affirmed the trial court's order stricking the expert's opinion: [the plaintiff had] not demonstrated that the information [the expert] reviewed contained sufficient facts or data upon which to base [his] opinion... [he did] not cite to any scientific methodology or literature supporting his conclusions or approving of the method he employed to make those conclusions. Id. at 1261-62. Dr. DeWitt has failed to establish that a review of written deposition testimony provides a sufficient basis to support an evaluation of a person's core personality traits. She cites no approved methodology or scientific literature recognizing her method as legitimate, acceptable, or reliable within the forensic psychology community. See, also, People v. Wilson, 518 N.Y.S.2d 690, 133 A.D.2d 179, 183 (N.Y. App. Div. 1987) (excluding

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forensic psychologist testimony based solely on courtroom observation during the trial. On appeal, the court concluded on grounds that diagnostic technique of courtroom observation has not attained any measure of scientific recognition as a reliable substitute for a clinically derived evaluation.) In this case, Dr. DeWitt employed an even less reliable and complete form of evaluation than that addressed, and stricken, in Wilson. Dr. DeWitt has not established her prior reliance, and judicial acceptance, of deposition transcripts as a common, acceptable, reliable forensic methodology. Similarly, Dr. DeWitt fails to demonstrate that her chosen method here has attained any measure of recognition from the psychological community as a reliable substitute for a personal examination of Dr. Bramlet. II. DR. DEWITT'S TESTIMONY WILL NOT ASSIST THE TRIER OF FACT TO UNDERSTAND THE EVIDENCE OR DETERMINE A FACT IN ISSUE, AND THEREFORE IS MORE PREJUDICIAL THAN PROBATIVE. Helpfulness to the jury is the cornerstone consideration for the admission of expert testimony. In this case, Dr. DeWitt's unsupported conclusions regarding Dr. Bramlet's alleged personality traits must be excluded as such conclusions lie within the sound understanding of lay persons. Expert testimony consisting of general knowledge within the common understanding of lay jurors should not be admitted. See United States v. Webb (625 F.2d 709, (5th Cir. 1980) (improper to admit expert testimony that defendant was a peaceable, non-violent person because such character traits were within the common understanding of the lay juror). In this case, the jury certainly would have a common understanding of people sufficient to support an assessment as to whether Dr. Bramlet is "arrogant," "uncooperative," and "confused". Lay persons have the tools to make such an evaluation without any expert forensic guidance, especially given that the members of the 11

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jury will have an opportunity to observe Dr. Bramlet throughout his trial, including during his testimony. Additionally, Dr. DeWitt cannot testify as to Dr. Bramlet's character through reputation or opinion because her testimony is not based on personal observation or knowledge. F.R.E. 405; Sanseverino v. U.S., 321 F.2d 714, 716 (10th Cir. 1963). Therefore, because Dr. DeWitt's testimony is not helpful to the jury, and because it is inflammatory and not based on reliable methods, it is more prejudicial than probative and should be excluded. CONCLUSION Plaintiff respectfully requests the Court exclude Dr. DeWitt's testimony in its entirety as she has not met the standards set forth in F.R.E. 702 regarding expert testimony, and her testimony is more prejudicial than probative under F.R.E. 403. 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 22nd day of August, 2005, I electronically filed the foregoing PLAINTIFF'S 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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