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Does v. Boy Scouts of America

United States District Court, D. Idaho

December 3, 2018

BOY SCOUTS OF AMERICA, a congressionally chartered corporation authorized to do business in Idaho; CORPORATION OF THE PRESIDING BISHOP OF THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS, a foreign corporation sole registered to do business in Idaho; and CORPORATION OF THE PRESIDENT OF THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS AND SUCCESSORS, a foreign corporation registered to do business in Idaho, Defendants.




         The 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.


         Dworin 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.

         Dworin 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.

         BSA's Motion to Exclude

         The BSA 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 it”)

         Dworin 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).

         The BSA 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.

         For 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.

         However, 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 predators.

         The 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.

         LDS Church ...

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