Jones v. Cannizzaro

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

ROBERT JONES CIVIL ACTION

VERSUS NO: 18-503

LEON CANNIZZARO, JR. SECTION “H”

ORDER AND REASONS

Before the Court are Defendant’s Motions in Limine to Exclude the

Expert Testimony of Dr. Allison Redlich (Doc. 217), Dr. Jennifer Dysart (Doc.

222), and Laurie Levenson (Doc. 230); and Plaintiff’s Motions in Limine to

Exclude the Expert Testimony of Frank DeSalvo (Doc. 226); and Dr. Mary

Tramontin (Doc. 227). For the following reasons, the Motions in Limine to

Exclude the Expert Testimony of Dr. Allison Redlich and Frank DeSalvo are

DENIED; and the Motions to Exclude the Testimony of Dr. Jennifer Dysart,

Laurie Levenson, and Dr. Mary Tramontin are GRANTED IN PART.

1

BACKGROUND

In March 1996, Plaintiff Robert Jones was found guilty at trial of charges

connected to a crime spree based in part on eyewitness identifications.

Thereafter, Plaintiff pleaded guilty to four additional crimes (the “Guilty Plea

Crimes”). Plaintiff’s initial conviction was vacated for Brady violations on

October 8, 2014 by the Louisiana Fourth Circuit Court of Appeal, and the

charges against him were ultimately dismissed. Plaintiff’s convictions for the

Guilty Plea Crimes were vacated in 2017 based on ineffective assistance of

counsel in connection with his guilty pleas. Plaintiff now brings claims against

Orleans Parish District Attorney Leon A. Cannizzaro, Jr. (“OPDA”) in his

official capacity under 42 U.S.C. § 1983 for damages caused by Plaintiff’s

wrongful conviction and 23-year incarceration.

Before the Court are three Motions in Limine filed by Defendant and two

Motions in Limine filed by Plaintiff seeking to exclude testimony by various

experts at trial. This Court will consider each motion in turn.

LEGAL STANDARD

The admissibility of expert testimony is governed by Federal Rule of

Evidence 702, which provides as follows:

A witness who is qualified as an expert by knowledge, skill,

experience, training, or education may testify in the form of an

opinion or otherwise if: (a) the expert’s scientific, technical, or

other specialized knowledge will help the trier of fact to

understand the evidence or to determine a fact in issue; (b) the

testimony is based on sufficient facts or data; (c) the testimony is

the product of reliable principles and methods; and (d) the expert

has reliably applied the principles and methods to the facts of the

case.

2

The current version of Rule 702 reflects the Supreme Court’s decisions in

Daubert v. Merrell Dow Pharmaceuticals, Inc.,1 and Kumho Tire Co. v.

Carmichael.2 The threshold inquiry is whether the expert possesses the

requisite qualifications to render an opinion on a particular subject matter.3

Having defined the permissible scope of the expert’s testimony, a court next

inquires whether the opinions are reliable and relevant.4 In undertaking this

tripartite analysis, courts must give proper deference to the traditional

adversary system and the role of the finder of fact within that system.5

“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.”6 As the “gatekeeper” of expert

testimony, the trial court enjoys broad discretion in determining

admissibility.7

LAW AND ANALYSIS

Defendant has moved to exclude the expert testimonies of Plaintiff’s

experts Dr. Allison Redlich, Dr. Jennifer Dysart, and Laurie Levenson.

Plaintiff has moved to exclude the expert testimonies of Defendant’s experts

1 509 U.S. 579 (1993).

2 526 U.S. 137 (1999).

3 Wagoner v. Exxon Mobil Corp., 813 F. Supp. 2d 771, 799 (E.D. La. 2011); see also

Wilson v. Woods, 163 F.3d 935, 937 (5th Cir. 1999) (“A district court should refuse to allow

an expert witness to testify if it finds that the witness is not qualified to testify in a particular

field or on a given subject.”).

4 See United States v. Valencia, 600 F.3d 389, 424 (5th Cir. 2010).

5 See Daubert, 509 U.S. at 596.

6 Id.

7 Wellogix, Inc. v. Accenture, L.L.P., 716 F.3d 867, 881 (5th Cir. 2013).

3

Frank DeSalvo and Dr. Mary Tramontin. This Court will consider each expert

in turn.

A. Dr. Allison Redlich

Plaintiff intends to introduce the expert testimony of Dr. Allison Redlich,

a psychologist and criminology professor at George Mason University, on the

prevalence of and reasons for false guilty pleas by innocent persons and

whether any of the factors known to increase the risk of a false guilty plea by

an innocent person are present in Plaintiff’s case. Redlich opines that

Plaintiff’s guilty plea “bears many of the hallmarks of a false guilty plea,”

including that he had been convicted at a prior trial, faced a mandatory life

sentence, and was unaware of exculpatory evidence that supported his

innocence of the charges. Redlich seeks to explain why Plaintiff might have

pleaded guilty to crimes he claims he did not commit. Defendant seeks to

exclude Redlich’s testimony, arguing that it will not assist the trier of fact and

is not based on reliable methodology.

i. Relevance

First, Defendant argues that Redlich’s opinions are not relevant to the

issues at trial. In the next breath, however, Defendant admits that Plaintiff’s

plea to the Guilty Plea Crimes is relevant to damages and causation.

Defendant states that “even if Mr. Jones were to succeed in proving a Brady

violation that caused him to be wrongfully convicted a trial in 1996, that Brady

violation would not be the actual and proximate cause of his imprisonment

because he was independently serving prison sentences based on the Guilty

Plea Crimes.”8 It is clear then that Defendant intends to argue that Plaintiff

8 Doc. 217-1 at 6.

4

would have served time for the Guilty Plea Crimes regardless of any prior

Brady violation. Redlich’s testimony is therefore plainly relevant to rebut this

defense. Plaintiff intends to offer Redlich’s testimony to show that “OPDA

leveraged his wrongful convictions, at a Brady-tainted trial, to extract his

guilty pleas.”9

Next, Defendant argues that Redlich’s opinions are not helpful to the

jury because they do not offer it any assistance in deciding whether Plaintiff is

guilty or innocent or what caused him to plead guilty to the Guilty Plea Crimes.

The fact that Redlich does not opine on Plaintiff’s guilt, innocence, or state of

mind—opinions that Defendant would no doubt argue are speculative and

impermissible legal conclusions—does not make her opinion unhelpful.

Redlich’s opinion will assist the jury in understanding why Plaintiff might

have pleaded guilty despite his claimed innocence and how the OPDA’s actions

may have contributed to that decision. Moreover, the Fifth Circuit has noted

that the “‘helpfulness threshold is low: it is principally . . . a matter of

relevance.’”10 A district court may admit expert testimony to help “the trier of

fact to understand the evidence or to determine a fact in issue.”11

Defendant also complains that Redlich’s opinion is unhelpful because she

does not opine whether it is more likely than not that Plaintiff’s guilty plea was

false. In so arguing, Defendant relies on the Fifth Circuit’s opinion in Pipitone

v. Biomatrix, Inc.12 In Pipitone, the Fifth Circuit affirmed the exclusion of an

expert’s opinion that “it was as likely as not” that a syringe of Synvisc

9 Doc. 240.

10 Puga v. RCX Sols., Inc., 922 F.3d 285, 294 (5th Cir. 2019) (quoting E.E.O.C. v. Boh

Bros. Const. Co., 731 F.3d 444, 459 n.14 (5th Cir. 2013) (en banc)).

11 Fed. R. Evid. 702(a).

12 Pipitone v. Biomatrix, Inc., 288 F.3d 239 (5th Cir. 2002).

5

administered to the plaintiff contained the salmonella bacteria that had

infected him.13 The court stated that the expert’s opinion was “not helpful to

the fact-finder because of his inability to conclude that it was more likely than

not that the Synvisc caused the infection in Pipitone’s knee. A perfectly

equivocal opinion does not make any fact more or less probable and is

irrelevant under the Federal Rules of Evidence.”14

Defendant reads Pipitone to declare that an expert’s opinion must find

that some outcome is “more likely than not.” This Court does not read Pipitone

to stand for this proposition. Rather, Pipitone states that an equivocal

position—that something is as likely as something else—is not helpful to the

trier of fact because it does not make any fact more or less probable. Pipitone

is inapplicable here where Redlich’s opinion is not equivocal. Redlich’s opinion

makes it more probable that Plaintiff made a false guilty plea and is therefore

helpful to the trier of fact.

ii. Reliability

Defendant next presents a series of reasons it believes that Redlich’s

opinions are not based on reliable principles and methods. Most of these

complaints amount to a disagreement with her opinion and are best addressed

on cross examination. Other objections simply mischaracterize Redlich’s

opinion. None convincingly challenge the methodology on which Redlich’s

opinions are based.

First, Defendant complains that many of the factors Redlich has

identified that would increase the likelihood of false guilty pleas are (1) not

13 Id. at 245.

14 Id.

6

present in this case or (2) might also increase the likelihood of true guilty pleas.

This might be a fair criticism of Redlich’s opinion, but it does not bear on the

methodology that she used to reach that opinion. A Daubert analysis must

focus “solely on principles and methodology, not on the conclusions that they

generate.”15

Similarly, Defendant argues that Redlich has no reliable scientific basis

to opine that failure to disclose exculpatory evidence is a common

characteristic of false guilty pleas. Redlich’s report relies on an article she co-

authored that found after a review of data from the National Registry of

Exoneration that 10% of false guilty pleas involved a failure to disclose

exculpatory evidence. Defendant argues that such a low percentage cannot

represent a commonality. It also argues that by its nature the prevalence of

suppressed exculpatory evidence is unknowable and thus Redlich’s opinion is

not based on any reliable scientific basis. Defendant’s objections do not speak

to the reliability of the methods by which Redlich reached her opinion. Rather,

they speak to her opinion itself. Defendant may cross examine Redlich on her

opinion that a factor present in 10% of cases represents a commonality.

Further, the fact that the suppression of favorable evidence is often unknown

only bolsters her opinion that the 10% finding might actually be much higher.

Next, Defendant argues that Redlich has no basis for her opinion that

innocent defendants may plead guilty “after experiencing a loss at trial

themselves or watching co-defendants lose at trial and be sentenced harshly.”

However, Redlich’s report plainly relies on several cases and a dataset from

the National Registry of Exoneration to support her opinion. Daubert requires

15 Daubert, 509 U.S. at 595.

7

only that a court “make certain that an expert, whether basing testimony upon

professional studies or personal experience, employs in the courtroom the same

level of intellectual rigor that characterizes the practice of an expert in the

relevant field.”16 Defendant has not identified any reason that Redlich’s

method of reliance on cases, exoneration data, studies, and her own research

is unreliable. “Questions relating to the bases and sources of an expert’s

opinion affect the weight to be assigned that opinion rather than its

admissibility and should be left for the jury’s consideration.”17

Finally, Defendant argues that Plaintiff should be judicially estopped

from suggesting that the OPDA’s misconduct caused him to plead guilty when

he previously argued that ineffective assistance of counsel was to blame. To be

sure, Plaintiff also previously argued that the suppression of evidence caused

him to plead guilty. Judicial estoppel prevents a party from asserting a position

that is plainly inconsistent with a position previously taken.18 Here, there is

nothing contrary about Plaintiff’s position that both ineffective assistance of

counsel and the OPDA’s misconduct caused him to plead guilty. Defendant’s

motion to exclude Redlich’s testimony fails.

B. Dr. Jennifer Dysart

Plaintiff intends to introduce the expert testimony of Dr. Jennifer

Dysart, a social psychologist and expert in the field of eyewitness

identification, to support his contention that he was mistakenly identified.

Dysart will opine that several factors exist in Plaintiff’s case that have been

shown to affect the accuracy of witness identification and that those factors

16 Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999).

17 United States v. Hodge, 933 F.3d 468, 478 (5th Cir. 2019), as revised (Aug. 9, 2019).

18 New Hampshire v. Maine, 532 U.S. 742, 749 (2001).

8

significantly decrease the likelihood of an accurate identification by the victims

in this case. Defendant argues that Dysart’s opinion is neither relevant nor

reliable.

i. Relevance

Defendant argues that Dysart’s testimony is irrelevant because it does

not address a fact in issue. Defendant correctly points out that an expert

opinion regarding eyewitness identification would not have been admissible

during Plaintiff’s 1996 criminal trial in light of Louisiana’s public policy

prohibiting such testimony as inherently unreliable.19 Accordingly, Dysart’s

testimony cannot be introduced on the element of causation. Plaintiff must

show that the OPDA’s Brady violations were a proximate cause of his

conviction and incarceration. He cannot present Dysart’s opinion to undermine

the eyewitness testimony that was given at his trial.

Plaintiff argues, however, that Dysart’s opinion is relevant to show

Plaintiff’s innocence of the crimes for which he was convicted, which bears on

the issue of damages. Plaintiff contends that the jury award for a factually

innocent man will be much higher than the award for a factually guilty one.

This Court agrees.

Defendant rebuts, however, that Plaintiff does not need Dysart’s opinion

because he already has a significant amount of evidence suggesting his

innocence and Dysart’s testimony risks jury confusion and the improper

application of her opinion to its consideration of cause-in-fact. This Court will

permit a limiting instruction to address these concerns.

19 See State v. Stucke, 419 So. 2d 939, 945 (La. 1982).

9

Defendant next argues that Dysart’s testimony is unhelpful to the jury

because she does not provide the probability that the identifications of Plaintiff

were inaccurate. In so arguing, Defendant again relies on the Fifth Circuit’s

opinion in Pipitone. Pipitone is again inapplicable. Dysart’s opinion is not

equivocal. She opines that there is a decreased likelihood of an accurate

identification by the victims in this case, making it more probable that Plaintiff

is innocent.

ii. Reliability

Defendant next argues that Dysart’s report seeks to offer opinions on

issues that are outside her area of expertise including police lineups and crime

scene reconstruction. These arguments misconstrue Dysart’s opinion. Dysart

does not opine on the constitutionality, efficacy, or reliability of the photo

lineup used by the NOPD to obtain pretrial identifications from the witnesses

in this case. Likewise, she does not seek to reconstruct the crime scene.

Instead, Dysart offers opinions on how the facts of Plaintiff’s case may have

affected the accuracy of witness identification. Dysart relies on a body of

research and her experience in the field of eyewitness identification to opine

on how the witness identification in this case was influenced by the lineup

procedures actually used and the opportunities that the witnesses had to see

the perpetrator.

That said, there are portions of Dysart’s opinion in which her

commentary on these issues goes beyond that necessary to support her opinion.

For instance, several time Dysart mentions that the lineups conducted by the

NOPD fell below the standard of care. In addition, she offers a detailed

discussion of why the victim’s statement that she sees better in the dark is

10

inconsistent with the science of vision. These comments are outside of Dysart’s

area of expertise, and she will not be permitted to offer these opinions. The

remainder of her opinion is relevant, reliable, and proper. Defendant’s motion

to exclude Dysart’s testimony is granted in part as outlined above.

C. Laurie Levenson

Plaintiff intends to introduce the expert testimony of Laurie Levenson,

a legal professor and expert in the field of criminal law and ethics, to opine on

whether the OPDA’s policies, practices, and customs complied with the

requirements of Brady. Defendant raises several objections to Levenson’s

report.20 This Court will address each in turn.

i. Qualifications

First, Defendant complains that Levenson has not identified a valid field

of expertise or established her expertise with respect to issues addressed in her

report. This Court finds these arguments disingenuous. Levenson is clearly

qualified to give the opinions contained in her report. She has practiced in the

field of criminal law and ethics as a prosecutor, professor, and author for more

than thirty years. In addition, she has published several articles relating

specifically to Brady law and is regarded in the field as an expert in that area.

Second, Defendant complains that Levenson’s report reads like a brief

written by a zealous advocate, rather than an objective expert. Defendant

objects to the tone of Levenson’s report as too adversarial and argues that she

credits facts in the record that support her conclusion and discredits those that

20 Plaintiff’s acknowledgement that Levenson will not offer opinions on causation,

deliberate indifference, constitutionality, whether a Brady violation occurred, or how the

facts of this case compare to the court’s opinions in Connick and Truvia moot several of the

arguments initially lodged by Defendant.

11

contradict it. This is not a valid criticism under Rule 702 and is best addressed

on cross examination.

ii. Reliability

Defendant next argues that Levenson’s opinions are not grounded in an

accepted body of learning or experience and that she has not explained how

her experiences led to those conclusions. Ironically, in defense of its own legal

expert, Defendant argued that “the reliability of an expert attorney’s

conclusions based on experience can readily be evaluated by the Court and

counsel for the parties without elaborate explanation, due to their familiarity

with the subject matter.”21 Here too, it is clear how Levenson’s experience and

knowledge in the legal field led to her opinions. Overall, this Court finds

Levenson’s opinions sufficiently reliable.

Specifically, Levenson’s opinions regarding the adequacy of OPDA’s

policies are reliably based on her experience and her exhaustive review of the

facts of this case, opinions of other courts, and standards of professional legal

organizations. Defendant’s continued insistence on mathematical calculations

of likelihood is again improper.22 Further, this Court does not find that her

opinion that OPDA’s policy contained misstatements offers an impermissible

legal conclusion. Levenson’s testimony will help the jury understand the

adequacy of OPDA’s Brady policy. She does not opine on whether the OPDA

21 Doc. 243 at 20.

22 Defendant’s arguments that this opinion is not relevant were not raised until its

reply brief. “Arguments raised for the first time in a reply brief are generally waived.” Jones

v. Cain, 600 F.3d 527, 541 (5th Cir. 2010).

12

was deliberately indifferent or whether its policies were constitutional.

Accordingly, she does not offer an opinion on a conclusion of law.23

In addition, this Court finds no merit in Defendant’s argument that

Levenson cannot testify regarding Brady violations found by other courts or

claimed in other cases.24 Levenson’s opinion offers a synthesis of the available

case law that will assist the jury in its consideration of the history of findings

and allegations of Brady violations by the OPDA. While a court opinion offers

the most concise description of the facts of a case, it may still be too complex

for a lay person to decipher, understand, synthesize, and appreciate its

relevance to the facts of this case. Further, Levenson’s opinion about the

opportunities that the OPDA would have had to learn about court decisions

finding Brady violations is not an impermissible legal conclusion or opinion on

Defendant’s state of mind.

Further, her opinion that the actual number of Brady violations by the

OPDA is likely much larger than the number that has been documented in

court decisions is fully supported by reliable sources and the facts in the record.

The fact that she does not purport to estimate the number of undocumented

violations does not make her opinion less reliable.

That said, the Court finds that one of Defendant’s objections to

Levenson’s opinions has merit. The Court finds the method by which Levenson

calculated and compared the Brady violations in other cities to those

committed by the OPDA to be unreliable. Levenson seeks to opine that the

23 The Federal Rules of Evidence do not “allow an expert to render conclusions of law.”

Porter v. Lear, 751 F. App’x 422, 433 (5th Cir. 2018).

24 Defendant’s objection to Levenson’s improper use of the term “Brady violation” shall

be considered on a case-by-case basis at trial.

13

number of Brady violations by the OPDA “far eclipse those of comparable

prosecutor’s offices.” In reaching this opinion, Levenson determined the

number of Brady violations in four cities by searching the Westlaw database,

news coverage, and “the National Registry of Exonerations and local Innocence

Projects websites.” This sort of ad hoc review fails to take into consideration

the number of cases prosecuted in each city and the accuracy and completeness

of the databases reviewed. Further, Levenson has not shown that such a

method is commonly used or accepted in her field. Accordingly, Levenson will

not be permitted to offer testimony on this comparison. Her testimony is

otherwise reliable, relevant, and proper. Accordingly, Defendant’s motion to

exclude her testimony is granted in part as outlined above.

D. Frank DeSalvo

Defendant seeks to introduce the expert opinion of criminal lawyer

Frank DeSalvo as to what Plaintiff’s trial counsel, Curklin Atkins, would have

done if he had received the allegedly suppressed evidence and how it would

have affected Plaintiff’s trial. Plaintiff seeks to exclude DeSalvo’s opinion

testimony because (1) it is unhelpful in light of this Court’s res judicata ruling

and (2) it is not sufficiently reliable because it is based on insufficient facts and

his personal experience as an attorney only.25

First, Plaintiff argues that because most of DeSalvo’s opinions conflict

with holdings of the Fourth Circuit—which this Court has held are res

judicata26—they are unhelpful and irrelevant. While the Court agrees that

25 Plaintiff also argues that DeSalvo’s opinions should be excluded in light of the

doctrine of judicial estoppel. These arguments were considered and rejected in the Court’s

Order and Reasons on Plaintiff’s Motion in Limine and Partial Motion for Summary

Judgment on Defendant’s Fifth Affirmative Defense.

26 Doc. 117.

14

some of DeSalvo’s opinions contradict statements made by the Fourth Circuit,

these statements are not holdings that merit application of the doctrine of res

judicata. “Issue preclusion requires the issue to be precluded to have been a

dispositive issue which the prior court must have considered in a contest

between the same parties.”27

First, Plaintiff complains that DeSalvo’s assumption that Atkins

received an incident report that included a description of the perpetrator’s

appearance conflicts with the Fourth Circuit’s statement that Atkins did not

have that information. Although the Fourth Circuit found a Brady violation

for the suppression of the victims’ descriptions found in other documents, the

issue of whether the incident report was suppressed was not litigated.

Accordingly, the court simply did not consider the issue.

Further, DeSalvo opines that Atkins would not have used several pieces

of suppressed evidence even if they had been disclosed. While this opinion

undercuts the Fourth Circuit’s materiality holding, the issue of what Atkins

would have done with the suppressed evidence was not litigated. More

importantly, DeSalvo’s opinions are relevant to the issue of whether the

suppression of Brady evidence caused Plaintiff’s conviction.28 Accordingly,

DeSalvo’s opinion is both helpful and relevant.

As to reliability, Plaintiff argues that DeSalvo’s opinions are

insufficiently reliable because they are based only on his personal experience

and an incomplete review of the critical documents in the case. First, Plaintiff

27 Goodman v. Spillers, 686 So. 2d 160, 167 (La. App. 2 Cir. 1996).

28 That said, DeSalvo’s opinion is limited by the Court’s prior holding precluding

Defendant from arguing that Atkins’s ineffective assistance was a cause of Plaintiff’s

conviction. See Order and Reasons on Plaintiff’s Motion in Limine and Partial Motion for

Summary Judgment on Defendant’s Fifth Affirmative Defense.

15

complains that DeSalvo does not base his opinions on any professional

standard or methodology. Rather, he states that his opinions are based solely

on his work as a criminal defense lawyer. Further, he fails to explain how that

experience informed his opinions in this case. As with Plaintiff’s expert,

Levenson, this Court finds DeSalvo’s more than forty years of experience as a

criminal defense lawyer sufficiently reliable, and this Court can readily see

how that experience led to his opinions in this matter.

Plaintiff next complains that in reaching his opinion DeSalvo failed to

review the entire case file, instead relying on defense counsel to provide him

with documents to review. Plaintiff points out that DeSalvo failed to review

pertinent documents—such as the “Menner Memo” and deposition transcripts

of significant witnesses—prior to rendering his opinion. The Court does not

find this argument compelling. DeSalvo reviewed sufficient information in the

record to form a reliable opinion, and his opinion need not address every issue.

Accordingly, Plaintiff’s motion to exclude his testimony fails.

E. Dr. Mary Tramontin

Finally, Defendant seeks to introduce the expert testimony of Dr. Mary

Tramontin, a clinical psychologist, to opine that (1) Plaintiff does not suffer

from PTSD and (2) Plaintiff’s plea was voluntarily entered. Plaintiff seeks to

exclude Tramontin’s opinion for four distinct reasons.29

First, Plaintiff argues that Tramontin’s testimony should be excluded

due to Defendant’s failure to record her entire examination of Plaintiff, in

29 Plaintiff’s motion asserts other reasons for exclusion, including that Tramontin

should not be allowed to testify as to psychopathy, conduct disorder, anti-social personality

disorder, malingering or that Plaintiff’s life was improved by his time in incarceration.

However, Defendant has stated that Tramontin does not intend to offer testimony on any of

these issues.

16

violation of a court order. Defendant argues that it never offered, and was not

ordered, to record the portions of Plaintiff’s examination that involved written

test taking. It states, however, that the entirety of Plaintiff’s interview with

Tramontin was recorded. It notes that Plaintiff does not argue that anything

occurred during the unrecorded portions of the examination that undermines

Tramontin’s conclusions. This Court agrees. Plaintiff—who was obviously

present for the duration of the examination—has not identified any prejudice

from Tramontin’s failure to record its entirety. Further, the court order that

Plaintiff references simply memorialized the parties’ agreement to video tape

the examination.30

Next, Plaintiff argues that the portions of the examination that were

recorded reveal that Tramontin’s report is rife with inaccuracies and

misrepresentations, making it unreliable. As Defendant points out, however,

the inaccuracies identified by Plaintiff are more aptly described as

disagreements with Tramontin’s interpretations of the statements made to her

by Plaintiff in his interview. These discrepancies are best addressed on cross

examination.

Third, Plaintiff argues that Tramontin should not be permitted to opine

on the voluntariness of Plaintiff’s guilty plea because she is not qualified to

offer such an opinion. Plaintiff complains that Tramontin has no expertise on

the subject of guilty pleas and points out that she is not familiar with any case

law concerning what constitutes a voluntary plea, has never attended a plea

hearing, has not studied or researched the topic, and does not consider herself

an expert on the psychology of guilty pleas. This Court agrees. Tramontin’s

30 Doc. 168.

17

expertise in the field of clinical and forensic psychology does not qualify her to

opine on the voluntariness of Plaintiff's guilty plea. She is only qualified to

opine that he did not suffer from a mental defect at the time he entered his

guilty plea.

Finally, Plaintiff seeks to prevent Tramontin from testifying that her

report is “peer reviewed.” Tramontin’s report states that it has been peer

reviewed and is signed by three of Tramontin’s colleagues with whom she

discussed the report and who provided a “final scrub” of the report. Plaintiff

argues that the use of the phrase “peer review” is misleading and prejudicial.

This Court agrees. The phrase “peer review” impermissibly implies that other

experts agree with her opinion and that her opinion has undergone a thorough,

academic review that it has not. Accordingly, Tramontin will not be permitted

to testify that her report has been peer reviewed. Plaintiff's motion to exclude

her testimony is granted in part as outlined above.

CONCLUSION

For the foregoing reasons, the Motions in Limine to Exclude the Expert

Testimony of Dr. Allison Redlich and Frank DeSalvo are DENIED; and the

Motions in Limine to Exclude the Testimony of Dr. Jennifer Dysart, Laurie

Levenson, and Dr. Mary Tramontin are GRANTED IN PART as outlined

herein.

New Orleans, Louisiana this 21st day of January, 2021.

ONTTED STATES DISTRICT JUDGE