Free Motion to Strike - District Court of Arizona - Arizona

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Brett Duke, Texas Bar # 24012559 The Law Offices of Brett Duke, P.C. 4157 Rio Bravo El Paso, Texas 79902 915-875-0003 915-875-0004 (facsimile) [email protected] Attorney for Plaintiff, Cheryl Allred Leon Schydlower, Texas Bar # 00795639 Attorney at Law 210 N. Campbell St. El Paso, Texas 79901 915-532-3601 915-532-2041 (facsimile) [email protected] Attorney for Plaintiff, Cheryl Allred IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Cheryl Allred NO. CIV 03-2343 PHX-DGC Plaintiff, v. Corrections Corporation of America, Inc., and Bruno Stolc, Defendants. Before the voir dire examination of the jury panel, Plaintiff, Cheryl Allred, PLAINTIFF'S MOTION TO EXCLUDE TESTIMONY OF PHILLIP ESPLIN

19 makes this motion to exclude the testimony of Phillip Esplin, defendants' purported 20 expert. The Court should exclude the testimony of Phillip Esplin because it is neither 21 reliable nor helpful to the jury. 22 In a letter dated March 15, 2005, from Phillip Esplin to a lawyer for the 23 defendants Phillip Esplin listed the records he reviewed and his summaries, listed the 24 personality tests that the Plaintiff completed with the computer generated results of 25 such personality tests, and then opined that the treatment by the Plaintiff's treating 26 medical provider was flawed, opined he had reservations about the reliability of the

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Plaintiff as an historian, opined that the Plaintiff experienced a substantial degree of stress, and opined that the Plaintiff's report about the gang rape, across time, raises questions about the authenticity of the report. Attached as Exhibit A to this motion are portions of the transcripts of the deposition of Phillip Esplin including the letter dated March 15, 2005, from Phillip Esplin to Rachel Love Halverson. The opinions of Phillip Esplin are contained on page seven of his letter and numbered one through four. A court should exclude the testimony of a purported expert witness who is not qualified by knowledge, skill, experience, training, or education to render an opinion based on scientific, technical, or other specialized knowledge. Fed. R. Evid. 104(a), 702; McCullock v. H.B. Fuller Co., 61 F.3d 1038, 1042-43 (2nd Cir. 1995); In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 741-42 (3d Cir. 1994). An expert should have a higher degree of knowledge, skill, experience, training, or education about the subject of testimony than an ordinary person. See, e.g., McCullock, 61 F.3d at 1043. The Court should exclude the testimony of Phillip Esplin because he is not qualified as an expert. The anticipated testimony of Phillip Esplin should be excluded because his opinion is not the result of scientific, technical, or other specialized knowledge that will assist the trier of fact to understand the evidence or to determine a fact in issue. See Fed. R. Evid. 702. Specifically, the essential issue for the jury to decide is whether or not the Plaintiff was gang raped. First, in his deposition, Philip Esplin admits that this issue should be decided by the jury. "Q. Was Cheryl Allred gang raped on November 28th, 2001, at Central Arizona Detention Center? MR. STRUCK: Object to form. A. I don't believe that's a question for an expert to address. I think that's an ultimate issue question for the jury to decide.

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Q. BY MR. DUKE: Did you administer a gang rape test? A. I'm not familiar with any tests to determine whether one's been gang raped or not. ... "Q. And you indicated earlier that it would be a question for a jury to decide whether or not she was gang raped? A. It wouldn't be for a psychologist to determine whether or not she was raped." Deposition of Philip Esplin, pages 4-6. Second, and more important, the opinions and anticipated testimony of Phillip Esplin will not assist the trier of fact to understand the evidence or determine a fact in issue because it is not based on scientific, technical, or other specialized knowledge. The defendants hired Phillip Esplin to present their alleged and

perceived factual inconsistencies about the Plaintiff. Therefore, Phillip Esplin opines that he has "serious reservations arise regarding how reliable Ms. Allred is as an historian." and Phillip Esplin opines that "Ms. Allred's report, across time, regarding the specific facts and circumstances surrounding the alleged rape contain contradictions that raise serious questions about the authenticity of her report." These opinions are not the result of scientific, technical, or other specialized knowledge that will assist the trier of fact to understand the evidence or to determine a fact in issue. The defendants provided Phillip Esplin with documents, primarily litigation evidence, that is not used in the field of psychology so that he may opine that "[e]xaming the totality of information available to this examiner, serious reservations arise regarding how reliable Ms. Allred is as an historian.... Ms. Allred's report, across time, regarding the specific facts and circumstances surrounding the alleged rape contain contradictions that raise serious questions about the authenticity of her

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report." First the majority of the documents that he reviewed are not used in the field of psychology, such as the: Plaintiff's Complaint; Incident Statement by CO Padilla; Inmate Movement form; USMS Prisoner Tracking Documents; CCA Receipt for Prisoners form; R&D List for 11-29-2001; Inmate Acknowledgment for Orientation Information; CADC Progress Notes; CADC/USMS Notification Form; Memorandum f/Mark J. Hartigan, SDUSM, to Benny Martinez; CADC, dated 3-7-02; Booking photo and information; Prisoner Custody Alert Notice; Photos depicting R&D Unit and showers; Inmate Movement records for November 28, 2002; Logbook entries for November 28 thru November 29, 2001; Certified copy of criminal conviction in 01CR00886-001JP, US District Court, District of New Mexico; Plaintiff's records from Bernalillo County Detention Center; Defendant's Responses to Plaintiff's Interrogatories; Memorandum from John Mills to Bruno Stolc, 3-8-2002; and Diagram of Central Arizona Detention Center. Second, Phillip Esplin admitted that the material he reviewed is the source of discrepancies. "Note: the records reviewed show major discrepancies in a variety of areas...." (Id., page 2). Phillip Esplin admitted in his deposition that his opinion, as to the Plaintiff's accuracy as an historian, is based upon alleged factual discrepancies. "Q. And I want to be able to phrase this in a manner that you would agree. But is it my understanding that you're making such conclusion that there are reservations about her reliability as an historian based upon the variability of different construct items in the personality assessments? A. That contributed to it. Q. What else? A. The discrepancies between her report to other people about various circumstances and the records.

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Q. And you're talking about strictly factual discrepancies in terms of what she has reported and what other people have reported; what she has reported to others, what she reported to you? A. Yes. Q. We're not using any psychological methods to reach that conclusion, are we? MR. STRUCK: Object to the form. A. That would be ­ I would agree, yes, that there isn't any litmus test to decide who's being more or less accurate. You would have to look at the totality of it. Somebody has to make a decision. ... Q. Again, these are internal discrepancies attributed to Cheryl; wouldn't you agree? A. Well, these are records that reflect what she said to someone depending then on whether that someone wrote down accurately what was said. So I wasn't there so I don't know. ... Q. The same conclusion of yours regarding her reliability as an historian. Are you making such conclusion based on any perceived credibility you had of Cheryl? MR. STRUCK: Object to the form. A. Well, I was looking at it from the standpoint of how much can you rely on self-report versus looking through other types of corroboration opposed to being a truth detector in that sense. Q. You're not doing that; right? A. I'm not a truth detector." Deposition of Philip Esplin, pages 33 - 38. A court should exclude the testimony of an expert whose testimony is not reliable. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 149 (1999); Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592-93 (1993). An expert witness may be qualified 5

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and highly credible, but his or her conclusions may be based on unreliable methodology. Scientific evidence that is not grounded "in the methods and

procedures of science" is no more than "subjective belief or unsupported speculation." Daubert, 509 U.S. at 590. For the expert's testimony to be reliable, the following requirements must be met: (1) the expert's testimony must be based on sufficient facts or data, (2) the expert's testimony must be the product of reliable principles and methods, and (3) the expert must apply the principles and methods reliably to the facts of the case. Fed. R. Evid, 702; see U.S. v. Charley, 189 F.3d 1251, 1266 n.20 (10th Cir. 1999). The court should exclude the testimony of Philip Esplin because the testimony will not be reliable. Specifically, the court should exclude the testimony because the opinions of Phillip Esplin do not lend themselves to verification by scientific method through testing. See Daubert, 509 U.S. at 593. The opinions have not been evaluated in light of the potential rate of error for that scientific methodology. See Daubert, 509 U.S. at 594. The opinions have not been subjected to peer review or publication. See Daubert, 509 U.S. at 593. The opinions are not consistent with the generally accepted methods used to gather the relevant scientific evidence in the expert's discipline. See Daubert, 509 U.S. at 594. Specifically, Phillip Esplin provided personality tests to the Plaintiff. Phillip Esplin admitted that such personality tests do not prove or disprove whether or not the Plaintiff was gang raped and there is no publication of a scientific methodology to use such personality tests to prove or disprove whether or not a person was gang raped. "Q. Obviously, the personality assessment inventory, it doesn't measure or indicate whether or not a person was gang raped? A. That's correct. 6

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Q. Doesn't prove or disprove a gang rape? A. That's correct. ... Q. And, again, obviously, the Minnesota MultiphasicPersonality-II doesn't measure or indicate whether or not a person was gang raped? A. Correct. Q. Doesn't prove or disprove the gang rape? A. Correct. ... Q. And going back to the MMPI, it doesn't measure authenticity of a person's report of gang rape, does it? A. Correct. Q. The validity indicator profile, it does not measure or indicate whether or not a person was gang raped? A. Correct. Q. Doesn't prove or disprove a gang rape? A. Correct. ... A. I didn't make a determination about the truthfulness of the allegation per se. Q. Has it been tested that personality inventories can prove or disprove prison gang rape? A. No, I don't think they address the presence or absence of prison gang rapes. I don't think that's the intention. Q. Personality inventories? A. Correct. Q. I mean, I'm asking, though, in the psychological field, have there been any tests to indicate such?

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A. There are no litmus tests. Q. Any actual test? A. Correct, that I'm aware of, where you would test someone for their historical accuracy other than by the use of corroboration. Q. So have there been any peer reviews regarding personality inventories proving or disproving gang rapes? A. No. There may be studies that would look at profiling evidence of rapists or may look at ­ may relate to victimology that might look at are there certain features that would increase someone's risk. But that's not a test for whether something occurred. Q. Like we were discussing earlier, such don't indicate prison gang rape or not? A. Correct. Q. And, on that note, have there been any publications that personality inventories can prove or disprove prison gang rape? A. No. Well, let me just put a caveat to that. If you had someone that was floridly psychotic and someone that was reporting delusions, that could contribute to your weight heavily on corroborating evidence. Q. I don't think that ­ A. So the instruments could indicate a condition in which delusions may be quite prevalent, including a delusion or belief that there was an attempt to rape them when the evidence wouldn't support that contention. MR. DUKE: Objection. Nonresponsive. Q. Are there any publications, is what I was asking, something that's been published in the psychological field that indicates personality inventories can prove or disprove prison gang rape? A. Not as you stated it." Deposition of Philip Esplin, pages 37 - 39, 61-62.

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The anticipated testimony of Phillip Esplin should be excluded because his opinion was generated solely for the pending litigation. See Lust v. Merrell Dow Pharms., Inc., 89 F.3d 594, 597 (9th Cir. 1996). Again, the issue for the jury to decide is whether or not Plaintiff was gang raped on November 28, 2001. "Q. In the first sentence of your letter, you indicate that you `conducted a psychological evaluation of Cheryl Allred relative to the above-referenced matter.' Are you referring to the lawsuit? A. Yes. Q. And that is why you did your evaluation? A. Correct." Deposition of Philip Esplin, page 7. ... "Q. When did the defendants hire you? A. October of `04. Q. Prior to October, `04, had you had any thought or consideration of Cheryl Allred?' A. No." Deposition of Philip Esplin, page 20. ... "Q. Did you offer Cheryl any type of treatment? A. No." Deposition of Philip Esplin, page 69. Phillip Esplin's opinion regarding the methods utilized by Queta Van Wyngarden, the Plaintiff's treating medical provider, should be excluded because such opinion is not based on sufficient facts or data, (2) such opinion is not the product of reliable principles and methods, and (3) the witness did not apply the principles and methods reliably to the facts of the case. The court should exclude this opinion of Phillip Esplin because the anticipated testimony will not be reliable. Specifically, the Court should exclude this anticipated testimony because the opinion 9

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does not lend itself to verification by scientific method through testing; the opinion has not been evaluated in light of the potential rate of error for that scientific methodology; the opinion has not been subjected to peer review or publication; and the opinion is not consistent with the generally accepted methods used to gather the relevant scientific evidence in the expert's discipline. When specifically asked for the authority for deriving such opinion, Phillip Esplin failed to respond. See page 51 of the deposition of Phillip Esplin. Prayer For these reasons, the Plaintiff asks the Court to set this motion for a hearing and, after the hearing, to exclude the testimony of Phillip Esplin. DATED this 4th day of January, 2006. The Law Offices of Brett Duke, P.C. s/Brett Duke Brett Duke 4157 Rio Bravo El Paso, TExas 79902 Attorney for Plaintiff, Cheryl Allred ORIGINAL/COPY of the foregoing served this 4th day of January, 2006 to: Leon Schydlower Law Office Of Leon Schydlower 210 North Campbell Street El Paso, Texas 79901 Daniel P. Struck / Rachel Halvorson Jones, Skelton & Hochuli, P.L.C. 2901 N. Central Ave. Suite 800 Phoenix, Arizona 85012 s/Brett Duke

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