United States District Court, D. Utah
SCOTT K. MARLAND and JENNIFER D. MARLAND, as conservators for the minor child, J.S.M., Plaintiffs,
ASPLUNDH TREE EXPERT CO., a Pennsylvania corporation, Defendant.
MEMORANDUM DECISION AND ORDER DENYING DEFENDANT'S
CORRECTED MOTION TO PRECLUDE PLAINTIFFS' EXPERTS FROM
TESTIFYING AT TRIAL THAT J.S.M. WILL BE UNABLE TO STUDY
SCIENCE OR MATHEMATICS IN COLLEGE OR ATTEND GRADUATE
Stewart, District Judge
matter is before the Court on Defendant Asplundh Tree Expert
Co.'s Corrected Motion to Preclude Plaintiffs'
Experts from Testifying at Trial that J.S.M. will be Unable
to Study Science or Mathematics in College or Attend Graduate
School. For the reasons discussed below, the Court will deny
seeks to preclude specified testimony of three expert
witnesses retained by Plaintiffs to assess the lost future
income of J.S.M.: Dr. Sam Goldstein, Ms. Dina Galli, and Mr.
Jeremy Sharp. Plaintiffs retained Dr. Goldstein, a
board-certified neuropsychologist, to evaluate J.S.M.
Following the evaluation, Dr. Goldstein formed the following
challenged opinions regarding J.S.M.'s capability to
attain secondary education degrees: First, though J.S.M. may
attend college, as a result of the accident at issue, he is
not likely to major in areas related to science or
mathematics. Second, as a result of the accident, J.S.M. is
unlikely to attend graduate school in any area of study.
also retained Ms. Galli, a rehabilitation counselor, to
assess J.S.M.'s future employability and earning
capacity. In making this assessment, Ms. Galli relied on Dr.
Goldstein's opinions regarding J.S.M.'s secondary
education possibilities. Similarly, Mr. Sharp, an economist,
relied on Dr. Goldstein's opinions in his calculations
regarding the total economic damages sustained by J.S.M.
argues that Dr. Goldstein's opinions are unreliable and
unhelpful to the jury, and should therefore be precluded from
trial in accordance with Rule 702 of the Federal Rules of
Evidence. Furthermore, Defendant seeks to preclude the
testimonies of Ms. Galli and Mr. Sharp so far as they rely on
the specified opinions of Dr. Goldstein.
Rule of Evidence 702 states:
witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of
an opinion or otherwise if:
(a) the expert's scientific, technical, or other
specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and
(d) the expert has reliably applied the principles and
methods to the facts of the case.
702 imposes a gatekeeper obligation on the Court to
“ensure that any and all scientific testimony or
evidence admitted is not only relevant, but
reliable.” The Court must fulfill its gatekeeping
duty by making specific findings on the record.
“Specifically, the court must first determine whether
an expert is qualified by knowledge, skill, experience,
training, or education to render an
opinion.” Second, the Court must determine whether
the expert opinion is both relevant and
reliable. “The inquiry envisioned by Rule 702
is . . . a flexible one” and “[t]he admission or
exclusion of evidence lies within the sound discretion of the
trial court and cannot be reversed absent an abuse of
the first inquiry, Defendant does not appear to challenge Dr.
Goldstein's qualifications. Dr. Goldstein received a
Ph.D. in School Psychology from the University of Utah in
1980 and is certified as both a school psychologist and a
pediatric neuropsychologist. Additionally Dr. Goldstein has
served on a number of editorial, professional, and charitable
boards, as well as authored a number of tests, articles, and
texts in the field of neuropsychology.The Court
therefore finds that Dr. Goldstein is qualified to testify
regarding his neuropsychological evaluation of J.S.M. The
primary issue for the Court in this matter is the reliability
and helpfulness of Dr. Goldstein's proffered testimony.
RELIABILITY OF DR. GOLDSTEIN'S TESTIMONY
puts forth three arguments supporting its claim that Dr.
Goldstein's opinions are not reliable: (1) Dr. Goldstein
has pointed to no scientific literature, statistics, or other
evidence that supports his opinions that J.S.M. will not be
able to study in the fields of mathematics or science or that
he will not be able to attend graduate school; (2) Dr.
Goldstein's challenged opinions do not satisfy the
requirement that medical opinions be expressed to a
“reasonable degree of medical certainty;” and (3)
Dr. Goldstein's assessment was completed when J.S.M. was
in second grade and fails to take into account J.S.M.'s
significant improvement from second to third grade. The Court
will address each argument in turn.
the Court rejects the argument that Dr. Goldstein's
opinions are not supported by the evidence. Although
“[t]he proponent of expert testimony bears the burden
of showing that the testimony is admissible,
” they “need not prove that the expert
is undisputably correct . . . . Instead, [they] must show
that the method employed by the expert in reaching the
conclusion is scientifically sound and that the opinion is
based on facts which sufficiently satisfy Rule 702's
reliability requirements.” “[W]hen [an
expert's] conclusion simply does not follow from the
data, a district court is free to determine that an
impermissible analytical gap exists between premises and
conclusion, ” however, “asymptotic
perfection” between data and conclusion is not
conducting the neuropsychological assessment of J.S.M., Dr.
Goldstein consulted J.S.M.'s medical records, school
records, and family history, conducted clinical interviews of
J.S.M., and employed approximately twenty tests and
questionnaires. Based on J.S.M.'s detailed
neuropsychological assessment, Dr. Goldstein testified that
the following observations contributed to his conclusions:
First, upon reviewing the scores produced by J.S.M.'s
assessment, Dr. Goldstein found an uncharacteristic
discrepancy in J.S.M.'s strengths and
weaknesses. Specifically, Dr. Goldstein explained
that J.S.M.'s demonstrated strengths, or areas in which
J.S.M. scored above average, were high indicators of success
in specific areas where J.S.M., in fact, demonstrated
uncharacteristic weakness. Dr. Goldstein further stated
that this discrepancy was particularly surprising when
considering both of J.S.M.'s parents have earned
doctorate degrees and his older brother displays no signs of
the same weaknesses or discrepancies. Dr. Goldstein
also explained that while some of J.S.M.'s assessment
scores were consistent with people who receive a graduate
degree, some were consistent with people who do not earn
beyond a bachelor's degree, and others, particularly his
“achievement” scores, were consistent with people
who do not attend any additional schooling beyond high
Defendant does not challenge the reliability of any of the
methods employed or data acquired in Dr. Goldstein's
assessment of J.S.M. Instead Defendant argues that Dr.
Goldstein's challenged opinions “lack the
necessary connection” to the data produced by the
assessment. More specifically, Defendant maintains
that Dr. Goldstein has not referenced any specific data,
literature, or other evidence that explains why the
discrepancies and weaknesses demonstrated by J.S.M. lead to
the conclusions that J.S.M. will not major in mathematics or
science and will not attend graduate school. The Court
disagrees with Defendant's assessment.
reach the conclusions at issue, Dr. Goldstein applied the
data collected through J.S.M.'s assessment and his
personal observations to his experience as a certified
neuropsychologist and school psychologist. The Court does not
believe this creates an “impermissible analytical
gap.” To the extent there may be distance between data
and conclusion, “[v]igorous cross-examination,
presentation of contrary evidence, and careful instruction ...