The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge
MEMORANDUM DECISION AND ORDER
The Muellers have filed a motion to exclude testimony by Dr. Peter Rosin, Dr. Macdonald's expert. Dr. Rosin is a board certified emergency room physician who has been practicing emergency medicine for over forty years. He currently teaches emergency medicine at Harvard Medical School and the University of Arizona School of Medicine.
The Muellers seek to exclude Dr Rosen's statements regarding a "paradigm clash." On this point, Dr. Rosen stated in his report as follows:
It is my opinion that this case represents primarily a clash in paradigms of medical science. The only explanation of the behavior of the mother that makes any logical sense is that she and the physician are so far apart on their separate understandings of medical science that it made it impossible to communicate with her, and to explain the scientific concerns about the welfare of the baby, and as well the responsibilities of the physician.
In this paragraph, Dr. Rosen is explaining "the behavior of the mother." He identifies no expertise -- beyond that of any lay person -- to explain behavior. If he is relying on his long experience in the emergency room, he fails to describe that experience and how he used it to explain Corissa Mueller's behavior. See Rule 702 Advisory Committee Notes - 2000 Amendments (expert who relies primarily on experience "must explain how that experience leads to the conclusion reached"); see also, U.S. v. Hermanek, 289 F.3d 1076 (9th Cir. 2002) (citing Rule 702 Advisory Committee Notes in requiring expert relying on experience to explain his methodology).
Thus, Dr. Rosen cannot testify as an expert on behavior under Rule 702. Testifying as a lay person under Rule 701, his testimony must be "helpful" to the jury. It is not here, because he was not a witness to the events, and would be relying largely on the same material provided to the jury. Accordingly, Dr. Rosen's opinions about Corissa Mueller's behavior must be excluded.
Dr. Rosen states in his report that Dr. Macdonald had various legal obligations. For example, he states that when Corissa Mueller "refused to allow the physician to act upon his experience and clinical judgment, she also did not understand that he could not accept her refusal because of Idaho law." See Report at p. 6. Dr. Rosen also stated that Dr. Macdonald "had a legal mandate that governed his actions. He was legally obligated to report this situation to child protective services. It was the only choice he had other than to abandon his responsibilities to the child and accept the mother's refusal." Id. At the end of his Report, Dr. Rosen concludes that Dr. Macdonald "behaved in the only way possible given . . .the . . .legal constraints upon him." Report at 12.
Here, Dr. Rosen is offering opinions on Dr. Macdonald's legal obligations. Experts may interpret and analyze factual evidence but may not testify about the law. See Crow Tribe of Indians v. Racicot, 87 F.3d 1039, ...