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Swope v. Oneida School District

United States District Court, D. Idaho

April 23, 2019

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.




         Pending before the Court is Defendants' Motion to Exclude Expert Testimony (Dkt. 88) and Plaintiffs' Motion to Exclude Expert Testimony (Dkt. 90).

         Having 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.


         The 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.


         The 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).

         Rule 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).

         Additionally, 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 citation omitted).

         Reliability 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).


         At the 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.

         The 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 inadmissible.

         That issue aside, the Court considers the parties' remaining arguments for each expert they seek to preclude.

         A. Defendants' Motion to Exclude Expert Testimony (Dkt. 88) Carrie Igondjo

         Defendants 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.

         Russell Vollmer

         Defendants 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 records.

         The 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.

         Defendants 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.

         That 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 cannot ...

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