Free Motion in Limine - District Court of Arizona - Arizona

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 hereby request this Court to issue an Order in Limine to preclude "expert testimony" of rape crisis counselor Queta VanWyngarden based upon failure to disclose opinion testimony under Fed. R. Civ. P. 26(a)(2)(B). VanWyngarden also lacks the necessary qualifications to make mental health diagnosis and therefore her testimony is inadmissible under Fed. R. Evid. 401, 402, 403 and 702. I. BACKGROUND Plaintiff alleges she was raped by male inmates at CCA's Central Arizona Detention Center. Plaintiff claims that because of the rape, she continues to suffer from mental health conditions, including PTSD and M ajor Depressive Disorder. Defendants assert that the alleged rape did not occur. Queta VanWyngarden, a self-described rape crisis counselor, saw Plaintiff from August, 2002, to September 30, 2003. Ms. VanWyngarden has degrees NO. CIV 03-2343 PHX-DGC DEFENDANTS' MOTION IN LIMINE TO EXCLUDE TESTIMONY OF RAPE CRISIS COUNSELOR (Oral Argument Requested)

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in counseling and anthropology.1 She is a counselor and social worker but admits her background is not in psychology.2 She cannot prescribe medications.3 During her treatment of Plaintiff, VanWyngarden diagnosed Plaintiff with PTSD and M ajor Depressive Disorder. There is no dispute that VanWyngarden: (1) took Plaintiff's rape allegations at face value and without considering alternative hypothesis; (2) failed to conduct any normative psychological testing as required by the DSM-IV; (3) does not know what the term "malinger" means; (4) failed to obtain any of Plaintiff's abundant prior medical and mental health records; and (5) failed to consider whether Plaintiff's mental health symptoms were a result of Plaintiff's history of health problems, including multiple sclerosis, fibromyalgia and methamphetamine abuse.4 In sum, the methods used by VanWyngarden in arriving at her diagnostic opinions were fundamentally flawed. Defendants anticipate that at trial, Plaintiff will call VanWyngarden to offer expert opinions regarding Plaintiff's mental health diagnosis, prognosis and need for future mental health care. Plaintiff, however, never disclosed VanWyngarden in compliance with Fed. R. Civ. P. 26(a)(2)(B). 5 Plaintiff's deficient disclosure merely lists VanWyngarden as a witness. Plaintiff has never provided Defendants with a written report, as required by Fed. R. Civ. P. 26(a)(2)(B).

1

Exhibit 2 at 90. Exhibit 2 at 40, 90-91. Exhibit 2 at 49.

2

3

Expert Report of Dr. Phillip Esplin at 7 (Bates No. 1808) attached hereto as Exhibit 1; Deposition of VanWyngarden at 17, 26-27, 31, 34-35, 38-41, 81, 88, attached hereto as Exhibit 2.
5

4

Plaintiff's Expert Disclosures attached hereto as Exhibit 3. 2

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II.

ARGUMENT A. VanWyngarden's Expert Testimony Should Be Excluded For Failure To Comply With Fed. R. Civ. P. 26(a)(2)(B).

There is no dispute that Plaintiff failed to disclose the nature and basis for any expert opinions regarding mental health diagnosis, prognosis and need for future care. Fed. R. Civ. P. 37(c) provides that a party who fails to disclose information in compliance with Rule 26(a) is not permitted to use such evidence at trial. Because Plaintiff has never provided Defendants with the nature of the "expert" testimony she intends to illicit from VanWyngarden or the corresponding basis for those opinions, this Court should exclude VanWyngarden from offering expert opinions regarding diagnosis, prognosis and future care. B. VanW yngarden Is Not Qualified To Offer Expert Opinions.

The purpose of expert testimony is to allow the trier of fact to receive information, beyond its competence, which will be useful to the resolution of the dispute before it. See Fed. R. Evid. 702. The party seeking to offer the expert testimony must show that the witness is competent to give an expert opinion on that issue. Here, as set forth above, Plaintiff fails to demonstrate that VanWyngarden's anticipated diagnosis, prognosis and need for future care opinions are based upon sufficient data and the product of reliable principles and methods as required by Fed. R. Evid. 702. There is no evidence that VanWyngarden based her diagnosis and treatment of Plaintiff upon standard mental health diagnosis methodologies, or that she is even qualified to render these opinions as a counselor. Because VanWyngarden's methodology is unreliable, her testimony will not aid the jury in determining whether Plaintiff was injured. Moreover, under Fed. R. Evid. 403, Defendants will be

prejudiced by the risk the jury will assume she has the necessary qualifications to render

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psychological expert opinions and take her opinions as undisputed. Accordingly, the Court should preclude Ms. VanWyngarden from testifying at trial. In the alternative, Defendants request a Daubert hearing prior to trial to determine whether

VanWyngarden's is qualified to render expert opinions in this case. III. CONCLUSION For the foregoing reasons, Defendants respectfully request this Court enter an Order in Limine precluding "expert" testimony of Queta VanWyngarden at trial. DATED this 4th day of January, 2006. JONES, SKELTON & HOCHULI, P.L.C.

By s/ Daniel P. Struck Rachel Love Halvorson 2901 North Central Avenue Suite 800 Phoenix, Arizona 85012 Attorneys for Defendants Corrections Correction of America and Stolc Original of the foregoing e-filed with the Court and a copy e-served this 4th day of January 2006, 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 5970 Silver Springs Suite 700 El Paso, Texas 79912 Attorneys for Plaintiff Cheryl Allred s/Francine Gatto

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