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Marland v. Asplundh Tree Expert Co.

United States District Court, D. Utah

January 10, 2017

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.


          Ted Stewart, District Judge

         This 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 the Motion.

         I. BACKGROUND

         Defendant 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.

         Plaintiffs 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.

         Defendant 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.


         Federal Rule of Evidence 702 states:

         A 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 methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.

         Rule 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.”[1] The Court must fulfill its gatekeeping duty by making specific findings on the record.[2] “Specifically, the court must first determine whether an expert is qualified by knowledge, skill, experience, training, or education to render an opinion.”[3] Second, the Court must determine whether the expert opinion is both relevant and reliable.[4] “The inquiry envisioned by Rule 702 is . . . a flexible one”[5] 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 discretion.”[6]

         Regarding 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.[7]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.


         Defendant 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.

         First, 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, ”[8] 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.”[9] “[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 necessary.[10]

         In 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.[11] 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.[12] 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.[13] 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.[14] 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 school.[15]

         Notably, 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.[16] 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.

         To 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 ...

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