Free Response to Motion - District Court of Arizona - Arizona

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Daniel P. Struck, Bar #012377 Rachel Love Halvorson, Bar #019881 J ONES, S KELTON & H OCHULI, P.L.C. 2901 North Central Avenue Suite 800 Phoenix, Arizona 85012 Telephone No.: (602) 263-1700 Facsimile No.: (602) 263-1784 E-Mail: [email protected]; [email protected] Attorneys for Defendants Corrections Corporation of America and Stolc IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Cheryl Allred Plaintiff, v. Corrections Corporation of America, Inc.; Bruno Stolc Defendants. Defendants Corrections Corporation of America ("CCA") and Warden Stolc NO. CIV 03-2343 PHX-DGC DEFENDANTS' RESPONSE TO PLAINTIFF'S MOTION TO EXCLUDE TESTIMONY OF PHILLIP ESPLIN

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respond in opposition to Plaintiff's M otion to Exclude Testimony of Phillip Esplin. 16 Defendants retained Dr. Esplin, a licensed psychologist, to render opinions regarding 17 18 In November, 2001, the New Mexico District Court ordered Plaintiff to be 19 incarcerated at FMC-Carswell for purposes of receiving a mental competency 20 evaluation and medical work-up. Plaintiff claims that she was raped while housed 21 overnight at Defendants' prison while en-route to FMC-Carswell. 22 alleged rape, Plaintiff claims she suffers from PTSD, Major Depressive Disorder, 23 generalized depression, anxiety and fear, etc., which permeate her ability to function 24 25 26 Plaintiff's Motion runs afoul of this Court's October 26, 2005, Order stating that Motions in Limine not exceed 3 pages. Plaintiff's Motion is 10 pages. Defendants, however, will comply with the Court's Order that this Response not exceed 3 pages. Document 164 Filed 01/11/2006 Page 1 of 4
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the validity, nature and extent of Plaintiff's emotional distress claims.1

Because of the

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and enjoy life. Because Plaintiff has placed her mental condition at issue, Defendants are entitled to offer expert opinion evidence to counter the validity, nature and extent of her damages claims and to provide evidence of alternate causes of Plaintiff's alleged damages, including opinions as to: (1) whether diagnoses made by prior treating providers were based upon proper methodology; (2) the nature and extent of Plaintiff's current claimed emotional distress symptoms; and (3) alternative explanations for Plaintiff's claimed injuries, including prior existing conditions and personality disorders that account for Plaintiff's widely contradictory reports of the alleged rape. First, Plaintiff provides this Court with only Plaintiff's counsel's own personal opinion that Dr. Esplin's qualifications are substandard and his methodologies unreliable in order to attempt to exclude the opinions under Daubert. Plaintiff's

failure to offer any legal or scientific support for his challenges to Dr. Esplin's qualifications and methodologies defeats Plaintiff's Motion at the outset. Dr. Esplin is a licensed forensic psychologist, with 24 years experience, specializing in evaluations of sexually abused persons.2 He reviewed Plaintiff's jail and institutional records, reviewed Plaintiff's varying accounts of the alleged rape and social/psychological history, interviewed Plaintiff and performed a battery of normative psychological tests used in the field of psychology. 3 That Dr. Esplin relied on Plaintiff's mental health history in deriving his opinions is appropriate where at issue is whether there are alternative and pre-existing sources for Plaintiff's claimed emotional injuries. Next, Plaintiff cannot seek on one hand to rely on Plaintiff's treating rape crisis counselor, who is not even a psychologist, did not obtain any of Plaintiff's prior records and did not conduct psychological testing to conclude that Plaintiff suffers from PTSD

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See CV of Dr. Phillip Esplin attached hereto as Exhibit 1. See Expert Report of Dr. Esplin attached hereto as Exhibit 2. 2

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and Major Depressive Disorder because of the alleged rape, and then on the other hand argue that Defendants' expert is unreliable. Dr. Esplin based his opinions on the psychological tests he administered, review of Plaintiff's prior records and interviews with Plaintiff. Challenges to Dr. Esplin's factual basis or the sufficiency of his methodology are issues for cross examination and not a basis for exclusion.4 Finally, Dr. Esplin's testimony is not offered to prove whether or not the alleged rape actually occurred. Rather, the purpose of Dr. Esplin's testimony is to assist the jury to understand: (1) the status of Plaintiff's current mental health condition; (2) whether prior existing mental health conditions, including personality disorders, may be an alternate cause of Plaintiff's claimed damages; (3) whether Plaintiff's prior PTSD and Major Depressive Disorder diagnoses are reliable; and (4) whether varying reports regarding the details of an alleged rape are symptoms consistent with those suffering a traumatic experience and generally seen in persons suffering from PTSD or Major Depressive Disorder resulting from rape. Because Dr. Esplin's opinions are offered to address the validity, nature and extent of Plaintiff's damages claims, Dr. Esplin's testimony is admissible under Fed. R. Evid. 401, 402 and 403. Contrary to Plaintiff's assertions, Dr. Esplin's opinions do not invade the province of the jury in violation of Fed. R. Evid. 702, 703 and 704. Rule 704 provides experts may indeed provide opinions that embrace the ultimate issue to be decided by the jury. For the foregoing reasons, Defendants request this Court deny Plaintiff's Motion to exclude expert opinion evidence offered by Dr. Esplin.

See Hangarter v. Provident Life and Accident Ins. Co., 373 F.3d 998, 1017 (9th Cir. 2004) (challenges to factual basis for opinions goes to the weight of the evidence, not admissibility (9th Cir. 2004); Marvin v. Lumber and Cedar Co. v. PPG Indus., 401 F.3d 901 (8th Cir. 2005) (same); Kennedy v. Collagen Corp., 161 F.3d 1226, (9th Cir. 1998) (existence of opposing experts, additional tests and contrary publications go to the weight of expert testimony, not admissibility). 3

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1 2 3 4 5 6 7 8 9 10 11 12 13 and 14 15 16 17 18 /s/ Francine Gatto 19 20 21 22 23 24 25 26

DATED this 11th day of January, 2006. JONES, SKELTON & HOCHULI, P.L.C.

By /s/ Rachel Love Halvorson Daniel P. Struck 2901 North Central Avenue Suite 800 Phoenix, Arizona 85012 Attorneys for Defendants Corrections Correction of America and Stolc Electronically filed this 6th day of January, 2006, with the United States District Court, District of Arizona. Copies served electronically to: Leon Schydlower, Esq L AW O FFICE O F L EON S CHYDLOWER 210 North Campbell Street El Paso, Texas 79901

Brett Duke, Esq. L AW O FFICES OF B RETT D UKE 4157 Rio Bravo El Paso, Texas 79902 Attorneys for Plaintiff Cheryl Allred

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