United States District Court, D. Idaho
TIMOTHY SWOPE and MARLA SWOPE, individually and on behalf of B.S., and DENISE COOMBS, individually and on behalf of O.C., Plaintiffs,
ONEIDA SCHOOL DISTRICT NO. 351, a county school district; DAVID RISENMAY, in his individual and official capacities; TERRI SORENSEN, in her individual and official capacities, and KERRY EVANS, in her individual and official capacities, Defendants.
MEMORANDUM DECISION AND ORDER
C. NYE CHIEF U.S. DISTRICT COURT JUDGE.
before the Court is Defendants' Motion to Exclude Expert
Testimony (Dkt. 88) and Plaintiffs' Motion to Exclude
Expert Testimony (Dkt. 90).
reviewed the record and briefs, the Court finds that the
facts and legal arguments are adequately presented.
Accordingly, in the interest of avoiding further delay, and
because the Court finds that the decisional process would not
be significantly aided by oral argument, the Court will
decide the Motion without oral argument. Dist. Idaho Loc.
Civ. R. 7.1(d)(2)(ii). For the reasons outlined below, the
Court will GRANT in PART and DENY in PART both motions.
FACTUAL AND PROCEDURAL BACKGROUND
background of this case is set forth in Judge Mark. W.
Bennett's prior Order. Dkt. 80, at 5-21. The Court
incorporates that background by reference here.
extent to which experts may render an opinion is addressed
under the well-known standard established in Daubert v.
Merrell Dow Pharms., Inc., 509 U.S. 579 (1993), and its
progeny, and now set forth in Rule 702 of the Federal Rules
of Evidence. See Moore v. Deer Valley Trucking,
Inc., No. 4:13-CV-00046-BLW, 2014 WL 4956241, at *1 (D.
Idaho Oct. 2, 2014).
702 establishes several requirements for the admission of
expert opinion and testimony. First, the evidence offered by
the expert must assist the trier of fact either to understand
the evidence or to determine a fact in issue. Primiano v.
Cook, 598 F.3d 558, 563 (9th Cir. 2010); Fed.R.Evid.
702. “The requirement that the opinion testimony assist
the trier of fact goes primarily to relevance.”
Id. (internal quotation marks and citation omitted).
an expert witness must be sufficiently qualified to render
his or her opinion. Id. If specialized knowledge
will assist the trier of fact in understanding the evidence
or determining a fact in issue, a witness qualified by
knowledge, skill, experience, training or education may offer
expert testimony where: (1) the opinion is based upon
sufficient facts or data, (2) the opinion is the product of
reliable principles and methods; and (3) the witness has
applied those principles and methods reliably to the facts of
the case. Fed.R.Evid. 702; Daubert, 509 U.S. at
592-93; Kumho Tire Co. v. Carmichael, 526 U.S. 137,
147 (1999). This inquiry is a flexible one.
Primiano, 598 F.3d at 564. Ultimately, a trial court
must “assure that the expert testimony both rests on a
reliable foundation and is relevant to the task at
hand.” Id. (internal quotation marks and
and relevance, however, must be distinguished from problems
with expert opinions that amount to impeachment and,
consequently, do not warrant exclusion. See City of
Pomona v. SQM N. Am. Corp., 750 F.3d 1036, 1044 (9th
Cir. 2014) (stating that, under Daubert,
“[t]he judge is ‘supposed to screen the jury from
unreliable nonsense opinions, but not exclude opinions merely
because they are impeachable.'” (quoting Alaska
Rent-A-Car, Inc. v. Avis Budget Grp., Inc., 738 F.3d
960, 969 (9th Cir. 2013))). Thus, “[a]s
Daubert confirmed, ‘[v]igorous
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.'” United States v.
Wells, 879 F.3d 900, 933 (9th Cir. 2018) (quoting
Daubert, 509 U.S. at 596).
outset, the Court must address Defendants' oft repeated
contention that experts should either be entirely precluded,
or their testimony limited, because claim preclusion should
bar re-litigation of facts underlying Plaintiffs' IDEA
claims that have already been decided. Defendants raise
similar arguments regarding facts that pre-date relevant
statutes of limitations.
Court's prior order (Dkt. 135) recently addressed these
arguments in greater detail. Thus, the Court will not restate
its analysis here. Suffice it to say, these arguments do not
automatically warrant preclusion of any of the experts
discussed below, or require limitations to their testimony.
That said, pursuant to the Court's prior order (Dkt.
135), Defendants may raise a proper objection any time they
believe an expert is attempting to provide testimony that is
issue aside, the Court considers the parties' remaining
arguments for each expert they seek to preclude.
Defendants' Motion to Exclude Expert Testimony (Dkt. 88)
assert that Igondjo was retained by Plaintiffs as an expert
to address issues connected to Plaintiffs' IDEA claims.
As Plaintiffs' IDEA claims have now been resolved,
Defendants contend that Igondjo's testimony would be
irrelevant and inadmissible. Dkt. 88, at 12. Plaintiffs have
not offered any response or counter argument regarding
Igondjo's potential testimony. As such, the Court GRANTS
Defendants' Motion to Exclude Igondjo's testimony.
claim that they repeatedly requested counseling records
related to Vollmer's time working at A to Z Counseling,
and that Plaintiffs have failed to produce those records.
Plaintiffs counter that they produced all of the records they
had access to and made a good faith effort to obtain the
records requested by Defendants. Plaintiffs further assert
that Defendants themselves failed to diligently pursue these
Court is not going to trouble itself with the parties'
respective finger pointing. In short, it appears Plaintiffs
made a good faith effort to obtain the records, even though
those records were not in their possession or control.
Unfortunately, they have been unable to obtain them.
contend that without these records, they will not be able to
“identify, review, or confirm” what B.S.'s
“baseline” is. Dkt. 88-1, at 8. This concerns
Defendants because “[o]n page 3 of his report, Mr.
Vollmer states ‘In making my above observations in
detecting [B.S.'s] mental status, it is essential to
understand where his baseline is.'” Id.
However, Defendants have had the opportunity to depose
Vollmer, and received at least 522 pages of Vollmer's
counseling records related to B.S. Presumably, this should be
sufficient for Defendants to prepare for trial and be ready
to cross-examine Vollmer. While they may be missing records
from Vollmer's time at A to Z, the Court finds that this
omission of records does not necessarily warrant
excluding Vollmer's expert testimony.
said, this decision may have been different if the Court had
a clearer understanding of how significant the information
contained within the A to Z Counseling records is to
Vollmer's opinions. If, at trial, it becomes apparent
that Vollmer's opinions and testimony are heavily
influenced by his interactions with B.S. while working at A
to Z Counseling, the Court may then decide that Vollmer