United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
LYNN WINMILL CHIEF U.S. DISTRICT COURT JUDGE
Court has before it motions filed by the Boy Scouts of
America (BSA)and the LDS Church to exclude the testimony of
plaintiffs' expert William Dworin. The motions are fully
briefed and at issue. The Court will deny the motions in
large part but grant a portion of each motion, as explained
in more detail below.
was retained by plaintiffs to testify about “the
voluminous evidence of what the [BSA] and LDS Church knew and
when about child molesters . . . .” See
Dworin Report (Dkt. No. 305-3) at ¶ 10. He has
undisputed expertise in the investigation of sexual crimes
against children, having worked for many years in this field
with the Los Angeles Police Department. Specifically, he
developed an expertise in profiling sexual predators, and
developing methods of predator identification and protection.
The issue in this case is whether his expected testimony
strays outside his area of expertise.
filed two expert reports. In the first, he (1) describes the
1, 350 publicly available ineligible volunteer files
(“IV Files”) generated and maintained by BSA; (2)
renders an opinion based on his review of these files that
the “BSA was aware years before 1963 that sexual
predators would seek out positions with the Boy Scouts to get
close to and target boys for abuse”; (3) describes how
individuals become adult scout leaders in the BSA and LDS
Church; (4) renders an opinion that the BSA and LDS Church
represented to their members that scouting was a “safe
and wholesome organization”; and (5) renders an opinion
that these representations were false because the BSA and LDS
Church knew there were sexual predators in adult leadership
positions but did nothing to warn about them. Dworin's
second report is a rebuttal report addressing the expert
reports submitted by the BSA and LDS Church.
Motion to Exclude
complains that Dworin has no expertise that would allow him
to testify about what the BSA knew - and when it knew - that
there were sexual predators within its adult leadership. In
rendering opinions on these subjects, Dworin relies entirely
on his experience. “Experience alone - or experience in
conjunction with knowledge, skill, training or
education” can provide a sufficient foundation for
expert testimony. See Federal Rule of Evidence
701, Adv. Comm. Notes. “In certain fields,
experience is the predominant, if not sole, basis for a great
deal of reliable expert testimony.” Id.
Nevertheless, experts like Dworin, who rely “solely or
primarily on experience, ” must explain “how that
experience leads to the conclusion reached, why that
experience is a sufficient basis for the opinion, and how
that experience is reliably applied to the facts.”
See Rule 702 Adv. Comm. Notes 2000 Amendments
(“The trial court's gatekeeping function requires
more than simply ‘taking the expert's word for
meets this standard. He explains that his opinions on what
the defendants knew - and when they knew it - are based on
his review of 1, 350 IV Files and his involvement as an
expert in 9 other similar civil cases against the BSA. This
experience and study, on its face, would appear to give
Dworin a reliable basis to render an opinion on what the BSA
knew, and when they knew, about sexual predators in their
adult leadership ranks. Moreover, Dworin's opinions are
based on known factors - the IV Files, and the BSA's
structure and public representations - that, if inaccurate,
are easily refutable by defendants. As the Advisory Committee
Notes explain, “the rejection of expert testimony
[after Daubert] is the exception rather than the rule.”
See Federal Rule of Evidence 702 Adv. Comm. Notes.
“Vigorous cross-examination, presentation of contrary
evidence, and careful instruction on the burden of proof are
the traditional and appropriate means of attacking shaky but
admissible evidence.” Daubert v. Merrell Dow,
509 U.S. 579, 595 (1993).
challenges the relevance of Dworin's testimony, arguing
that the BSA's knowledge of predators is not an element
of constructive fraud. But the Court resolved this issue in
Tom Doe v. Presiding Bishop, 2012 WL 3782454 at *20
(D. Idaho Aug. 31, 2012). There, the Court held that a
special relationship of trust and confidence was an element
of constructive fraud, and that a plaintiffs' youth and
the BSA's superior knowledge of the dangers are both
factors that support the existence of a special relationship.
The relevance objection is not persuasive.
these reasons, the Court will deny the BSA's motion to
the extent it seeks to exclude Dworin's testimony relying
on the IV Files and his 9 years of involvement as an expert
in similar cases to render an opinion on what the BSA knew,
and when they knew it, about sexual predators in its adult
leadership ranks. The same analysis applies to his testimony
about the BSA's public representations and their falsity.
Again, those opinions would have a reliable basis in his
experience and study discussed above.
there are other aspects of Dworin's testimony that are
excludable. For example, he plans to testify that (1) There
were thousands of boy scout victims; (2) the boys who joined
scouting and their parents believed and relied upon the false
statements that scouting was safe and wholesome; (3) the BSA
was negligent; and (4) that IV files contain information that
would assist the BSA in profiling the activities of a
pedophile, thereby allowing the BSA to protect the boys from
first two items on this list are mere speculation and will be
excluded. The third item - that the BSA was negligent - was
something Dworin testified to in his deposition but that
plaintiffs' counsel immediately disavowed, pointing out
accurately that there is no negligence claim in this case.
Given that, it appears Dworin will not so testify but the
Court will exclude the testimony just to be sure. With regard
to the fourth item, Dworin's testimony that the IV files
contain information helpful to creating a profile of a sexual
predator would be directly within his area of expertise.
However, the relevance of such testimony is not immediately
clear. The Court will exclude the testimony without prejudice
to the right of plaintiffs to raise this issue again during
trial when that relevance might become clearer.