"R.D" v. Shohola Camp Ground and Resort

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

R.D., : Civil No. 3:16-CV-01056

:

Plaintiff, :

:

v. : (Magistrate Judge Carlson)

:

SHOHOLA, INC., :

:

Defendant. :

MEMORANDUM OPINION

I. Factual Background

In the instant case, we are now called upon to consider the degree to which

science can usefully help inform a jury’s consideration of the vagaries of the

human mind and the mysteries of human recollection of events.

This case involves allegations of negligence by the defendant, Shohola, Inc.,

during a July 2007 Cape Cod camping excursion conducted by the defendant. In

the course of this excursion, four minors—N.S., R.D., G.M., and E.J.1—were

placed together in a tent without any immediate, direct adult supervision. What

transpired in that tent twelve years ago lies at the heart of this lawsuit. As to these

events, the witnesses provide accounts that are to some degree inconsistent with

1 To protect the privacy of these minors they will be identified only by initials in

this opinion.

one another, and the statements of some witnesses contain internal contradictions

and inconsistencies. Thus, with respect to the critical events in this case, we are

presented with an illustration of what is referred to as the Rashomon effect—

divergent recollections of a singular event by witnesses to that event. For example,

the plaintiff, R.D., has at various times described a sexual assault which he alleges

he suffered at the hands of an older boy, N.S., in this tent, but as the defendant

notes, R.D.’s descriptions of the precise nature of this assault and his assailant have

varied over time. E.J., another minor who was in the tent, has provided a recorded

statement in which he described a sexually charged game of truth or dare involving

himself and N.S., although E.J.’s description of this episode has varied in some

material details from R.D.’s narrative. The third boy in the tent, G.M., in turn, has

disclaimed any direct knowledge of any of these events involving N.S., R.D. and

E.J., but has also declined to actively dispute their accounts of these events.

As a result of this episode, R.D. alleges that he was the victim of sexual

assault and suffered both physical and psychological injuries. The psychological

harms that R.D. alleges were either caused by, or exacerbated by, this incident

include post-traumatic stress disorder (PTSD), borderline personality disorder, bi-

polar disorder, and depression. R.D. is now pursuing a negligence action against

Shohola, arguing that in 2007, Shohola was negligent in the placement of an older

teen, N.S., in this tent with younger boys, and in failing to more carefully oversee

these youths as they slept together since the danger of potential sexualized, non-

consensual and predatory behavior was readily foreseeable in this setting, and was

in fact foreseen by Shohola counsellors.

Given the claims and injuries alleged in this case by R.D., the workings of

the human mind are critical to an informed evaluation of this case by the jury.

Thus, in this case, the jury may be called upon to consider the vagaries of human

memory, the potential effects of trauma on recollection, and two phenomena

relating to recollection: repressed memories, that is recollections which have been

subconsciously blocked due to trauma, and confabulation, a phenomenon in which

individuals can experience sincerely held, but false or distorted recollections. It is

against this factual backdrop that we consider various motions in limine which

seek to shape, define and limit the expert psychological evidence which may be

presented to the jury. (Docs. 174, 203 and 253.)

These motions seek pre-trial rulings addressing the proffered testimony of

several medical witnesses. First, Shohola has filed two motions challenging the

proposed anticipated testimony of Dr. Roger Pittman, an expert witness retained by

the plaintiff. (Docs. 203, 253.) As described by the parties and as we understand it,

Dr. Pittman has evaluated R.D., conducted a battery of tests on R.D., and reviewed

documents relating to R.D. and this case. As a result of these clinical encounters,

evaluations and tests, Dr. Pittman may be prepared to testify to a range of matters.

For example, Dr. Pittman could potentially testify that he has diagnosed R.D. as

suffering from PTSD, bi-polar and borderline personality disorders, as well as

depression. The plaintiff also proposes that Dr. Pittman is prepared to testify that

sexual trauma can cause PTSD and contribute to the onset or exacerbation of these

other disorders. In addition, it appears that the plaintiff may endeavor to elicit

testimony from Dr. Pittman that R.D.’s symptoms and diagnoses are consistent

with PTSD caused by sexual violence. Finally, the defense motions in limine raise

a concern that Dr. Pittman may attempt to go even further in his testimony, in a

way which could be seen as vouching for the credibility of R.D.’s account of his

2007 encounter with N.S., by specifically testifying that N.S.’s sexual assault

caused R.D.’s PTSD, and contributed to the onset of his other emotional disorders.

According to the defendant, many, if not all, of these lines of inquiries would be

inappropriate and would overstep the bounds of proper expert testimony.

The plaintiff, in turn, has filed a motion in limine to exclude the testimony of

two defense experts, Dr. Elizabeth Loftus and Dr. Renee Sorrentino. (Doc. 174.)

Dr. Loftus is proffered as an expert witness who can testify to the inaccuracy and

vagaries of human recollection. Dr. Sorrentino, in turn, has been proffered as an

expert witness who could testify regarding whether sexual violence by N.S. was

specifically foreseeable.2 According to the plaintiff, this proposed expert testimony

is speculative, lacks scientific support, invades the province of the jury, and

should, therefore, be excluded from the trial of this case.

Presented with these motions, our task is to define the degree to which

scientific expert testimony on the working of the mind, and the factors which color

and shape human recollection, would aid the jury in its search for the truth while

ensuring that this expert testimony does not improperly intrude upon the cardinal

2 The thrust of Dr. Sorrentino’s proffered testimony as described in her expert

report was that N.S.’s specific propensity for sexual violence was not foreseeable.

(Doc. 175-1, pp. 90-3.) There are several problems with this proffered testimony,

in our view. Initially, we have already held that the plaintiff’s direct negligence

claim may rest upon an allegation that some risk of harm when young boys are left

unsupervised in tents was generally foreseeable, and need not be tied to the

question of whether harms specifically committed by N.S. were foreseeable. R.D.

v. Shohola, Inc., No. 3:16-CV-01056, 2018 WL 5920640, at *6 (M.D. Pa. Nov. 13,

2018), reconsideration denied, No. 3:16-CV-01056, 2019 WL 1584600 (M.D. Pa.

Apr. 12, 2019). Therefore, the focus of Dr. Sorrentino’s testimony is misplaced and

is not relevant to the remaining claim in this case. In any event, Dr. Sorrentino’s

report reveals that the doctor has never seen, treated, or examined N.S. and her

assessment of foreseeability of risk is based upon reading exhibits and deposition

transcripts which simply indicate that the defendants had no prior notice of sexual

predation by N.S. While Dr. Sorrentino’s recitation of this factual testimony may

add a certain academic cachet to this evidence, it is not proper expert testimony.

Further, the summary report of Dr. Sorrentino does not provide a basis for

assessing the reliability of any expert opinion she may render regarding predicting

future dangerousness of a particular person. Therefore, we would not permit this

expert testimony at trial, absent some much more compelling showing of

relevance, reliability, and fit.

function of the jury, which is to assess witness credibility. We undertake this task

guided by the analytical paradigm for the assessment of expert opinions prescribed

by Rule 702 of the Federal Rules of Evidence and the United States Supreme Court

in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed.

2d 469 (1993), which call upon us to perform a gatekeeping function when

evaluating proposed expert testimony and consider: “(1) the qualifications of the

expert, (2) the reliability of the process or technique the expert used in formulating

the opinion, and (3) the ‘fit’ between the opinion and the facts in dispute.” Buzzerd

v. Flagship Carwash of Port St. Lucie, Inc., 669 F. Supp. 2d 514, 519 (M.D. Pa.

2009) (citing In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 741-47 (3d Cir. 1994)

(“Paoli II”)).

While the resolution of these issues rests in the sound discretion of the court,

given the constellation of factual matters which Daubert invites us to consider,

oftentimes “[i]t would appear that the most efficient procedure that the district

court can use in making the reliability determination is an in limine hearing.”

United States v. Downing, 753 F.2d 1224, 1241 (3d Cir. 1985). That is the course

we will follow here. However, as a guide to the parties in preparation for this

hearing, we write to discuss what we believe to be the proper potential scope of

expert testimony in this case.

II. Discussion

A. Motions in Limine, Rule 702, and the Rules Governing Expert

Testimony

Any consideration of the proper scope of expert witness testimony begins

with Rule 702 of the Federal Rules of Evidence, 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) that 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.

Fed. R. Evid. 702. Rule 702 envisions a “liberal policy of admissibility.” Pineda

v. Ford Motor Co., 520 F.d 237, 243 (3d Cir. 2008) (quoting Kannankeril v.

Terminix Int’l Inc., 128 F.3d 802, 806 (3d Cir. 1997).

Following the Supreme Court’s guidance in Daubert, the United States

Court of Appeals for the Third Circuit has explained that the Rule provides for a

“trilogy of restrictions on expert testimony: qualification, reliability and fit.”

Calhoun v. Yamaha Motor Corp., 350 F.3d 316, 321 (3d Cir. 2003). Under the

Rule, the trial judge acts as a “gatekeeper” to ensure that before it is presented to a

jury, expert testimony is “both relevant and reliable.” Buzzerd v. Flagship Carwash

of Port St. Lucie, Inc., 669 F. Supp. 2d 514, 519 (M.D. Pa. 2009) (citing Daubert,

509 U.S. at 589). In cases where a party objects to the admissibility to proffered

expert opinion testimony, the court must examine: “(1) the qualifications of the

expert, (2) the reliability of the process or technique the expert used in formulating

the opinion, and (3) the ‘fit’ between the opinion and the facts in dispute.” Id.

(citing In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 741-47 (3d Cir. 1994)

(“Paoli II”)). In other words, a qualified expert’s “testimony must [(1)] be based on

sufficient facts and data; (2) must be the product of a reliable methodology; and (3)

must demonstrate a relevant connection between that methodology and the facts of

the case.” Jaasma v. Shell Oil Co., 412 F.3d 501, 513 (3d Cir. 2005).

To be qualified to provide expert testimony, an expert must possess

sufficient qualifications in the field, but this requirement is not overly restrictive.

Thus, the Third Circuit has “eschewed imposing overly rigorous requirements of

expertise and [has] been satisfied with more generalized qualifications.” Paoli II,

35 F.3d at 741. In other words, “an expert’s qualifications should be assessed

‘liberally,’ recognizing that ‘a broad range of knowledge, skills, and training

qualify an expert as such.’” Thomas v. CMI Terex Corp., Civil No. 07-3597, 2009

WL 3068242, at *5 (D.N.J. Sept. 21, 2009) (quoting Paoli II, 35 F.3d at 741). An

expert will not be excluded “simply because [the court] does not deem the

proposed expert to be the best qualified or because the proposed expert does not

have the specialization that the court considers most appropriate.” Holbrook v.

Lykes, Bros. S.S. Co., 80 F.3d 777, 782 (3d Cir. 1996). The focus, instead, is on

whether the qualifications that an expert does have provide a foundation for the

witness to testify meaningfully on a given matter. See Buzzerd, 669 F. Supp. 2d at

522 (citing Rose v. Truck Centers, Inc., 611 F. Supp. 2d 745, 749 (N.D. Ohio

2009) (“The issue with regard to expert testimony is not the qualifications of a

witness in the abstract, but whether those qualifications provide a foundation for a

witness to answer a specific question.”) (quoting Berry v. City of Detroit, 25 F.3d

1342, 1351 (6th Cir. 1994)).

Provided an expert is qualified to give opinion testimony in a given area, the

testimony must also be reliable. Accordingly, a court need not “admit opinion

evidence that is connected to existing data only by the ipse dixit of the expert. A

court may conclude that there is simply too great an analytical leap between the

data and the opinion proffered.” Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146

(1997). In determining whether proposed testimony is sufficiently reliable, courts

are to consider the following factors:

(1) whether a method consists of a testable hypothesis; (2) whether the

method has been subject to peer review; (3) the known or potential

rate of error; (4) the existence and maintenance of standards

controlling the technique’s operation; (5) whether the method is

generally accepted; (6) the relationship of the technique to methods

which have been established to be reliable; (7) the qualifications of

the expert witness testifying based on the methodology; and (8) the

non-judicial uses to which the method has been put.

Paoli II, 35 F.3d at 742 n.8. These factors “may or may not be pertinent in

assessing reliability, depending on the nature of the issue, the expert’s particular

expertise, and the subject of his testimony.” Kumho Tire Co. v. Carmichael, 526

U.S. 137, 147 (1999) (citation omitted); accord Kannankeril, 128 F.3d at 806-07

(“[T]hese factors are neither exhaustive nor applicable in every case.”).

Accordingly, the inquiry into reliability is flexible and depends upon the facts of

each particular case. Kumho Tire Co., 526 U.S. at 150.

The Third Circuit has noted that the reliability standard is “not intended to

be a high one” and is not designed to be applied in a way that “requires the

plaintiffs ‘to prove their case twice – they do not have to demonstrate to the judge

by a preponderance of the evidence that the assessments of their experts are

correct, they only have to demonstrate by a preponderance of the evidence that

their opinions are reliable.’” Oddi v. Ford Motor Co., 234 F.3d 136, 145 (3d Cir.

2000) (quoting Paoli II, 35 F.3d at 743). Noting that this is “a very important

distinction”, id., the Third Circuit explained that the proper test is whether the

“particular opinion is based on valid reasoning and reliable methodology.” Id.

(quoting Kannankeril, 128 F.3d at 806). However, the court was careful to

emphasize that “conclusions and methodology are not entirely distinct from one

another,” id. (quoting Joiner, 522 U.S. at 146), and that a court must therefore

“examine the expert’s conclusions in order to determine whether they could

reliably flow from the facts known to the expert and the methodology used.” Id.

(quoting Heller v. Shaw Indus., Inc., 167 F.3d 146, 153 (3d Cir. 1999)).

Closely tied to this inquiry, courts have found that opinion testimony is not

reliable if it relies solely on the plaintiff’s own claims of harm at the exclusion of

reliance upon other scientific or technical information in order to test the plaintiff’s

allegations. See, e.g., Steven J. Inc. v. Landmark Am. Ins. Co., Civ. A. No. 1:14-

CV-0474, 2015 WL 3849166, at *6 (M.D. Pa. June 22, 2015) (Conner, C.J.)

(excluding proffered expert witness’s testimony because “his methodology falls far

short of the required quantum of reliability” where the expert had relied

exclusively on information provided by the plaintiffs’ representatives regarding the

harm alleged, but where the expert “was unable to verify these representations” on

his own); cf. Hayden v. Westfield Ins. Co., No. 12-0390, 2013 WL 5781121, at *8

(W.D. Pa. Oct. 25, 2013) (finding fault with expert’s report where it failed to

consider other factors that may have contributed to the damage at issue), aff’d on

other grounds, 586 F. App’x 835 (3d Cir. 2014).

Likewise, although there may be some circumstances in which expert

testimony will be admissible because it properly derives from the expert’s

knowledge and experience, Oddi, 234 F.3d at 158, the expert must nevertheless

still establish that his methodology is reliable. Steven J., 2015 WL 3849166, at *5.

It is insufficient for an expert to offer an opinion that is based on no more than

subjective belief or an unsupported speculation. Oddi, 234 F.3d at 158; Kemmerer

v. State Farm Ins. Co., No. 01-5445, 2005 WL 87017, at *3 (E.D. Pa. Jan. 19,

2004) (noting that expert’s opinion testimony is inadmissible if it expresses only

possibilities).

In addition to the requirement that an expert be qualified and to have based

his opinions on reliable methodology, an expert’s proffered testimony must also

“fit” the subject matter of the dispute. The Supreme Court has explained that “fit”

is the “require[ment] that the evidence or testimony assist the trier of fact to

understand the evidence or to determine a fact in issue. . . . Expert testimony which

does not relate to any issue in the case is not relevant and, ergo, non-helpful.”

Daubert, 509 U.S. at 591 (internal quotations omitted). Expert testimony will meet

this standard where “there is a clear ‘fit’ connecting the issue in the case with the

expert’s opinion that will aid the jury in determining an issue in the case.”)

Meadows v. Anchor Longwall & Rebuild, Inc., 306 F. App’x 781, 790 (3d Cir.

2009).

Evaluation of proffered expert witness testimony, in turn, takes place against

the backdrop of rules which generally favor the admission of all relevant

information. Thus, Rule 402 of the Federal Rules of Evidence expressly provides

that all “[r]elevant evidence will be admissible unless the rules of evidence provide

to the contrary.” United States v. Sriyuth, 98 F.3d 739, 745 (3d Cir.1996) (citations

omitted). While these principles favoring inclusion of evidence are subject to some

reasonable limitations, even those limitations are also cast in terms that clearly

favor admission of relevant evidence over preclusion of proof in federal

proceedings. Thus, Rule 403, which provides grounds for exclusion of some

evidence, describes these grounds for exclusion as an exception to the general rule

favoring admission of relevant evidence, stating that:

Although relevant, evidence may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice, confusion

of the issues, or misleading the jury, or by considerations of undue

delay, waste of time, or needless presentation of cumulative evidence.

Fed. R. Evid. 403 (emphasis added).

Although Rule 403 is discretionary, and often will result in courts deferring

until trial rulings on the admissibility of relevant proof, Daubert teaches that courts

must also be mindful of the influence of expert opinion testimony in jury

proceedings: “Expert evidence can be both powerful and quite misleading because

of the difficulty in evaluating it. Because of this risk, the judge in weighing the

possible prejudice against probative force under Rule 403 of the present rules

exercises more control over experts than over lay witnesses.” Daubert, 509 U.S. at

595 (quoting Jack B. Weinstein, Rule 702 of the Federal Rules of Evidence is

Sound; It Should Not Be Amended)). Therefore, we should exercise this discretion

in order to ensure that juries are not exposed to unfairly prejudicial, confusing or

irrelevant evidence. United States v. Romano, 849 F.2d 812, 815 (3d Cir. 1988).

Courts may also do so in order to “narrow the evidentiary issues for trial and to

eliminate unnecessary trial interruptions.” Bradley v. Pittsburgh Bd. of Educ., 913

F.2d 1064, 1069 (3d Cir. 1990) (citation omitted). However, courts should be

careful before doing so since these broad principles favoring the admission of

relevant evidence also shape and define the scope of this Court's discretion in

addressing motions in limine like those filed here. In the past, the Third Circuit has

cautioned against such preliminary and wholesale exclusion of evidence, noting

that it has “made clear that rulings excluding evidence on Rule 403 grounds should

rarely be made in limine.” Walden v. Georgia–Pacific Corp., 126 F.3d 506, 518 n.

10 (3d Cir.1997). The reason for this caution is evident: oftentimes a court “cannot

fairly ascertain the potential relevance of evidence for Rule 403 purposes until it

has a full record relevant to the putatively objectionable evidence.” Id.; see also In

re Diet Drugs Products Liability Litigation, 369 F.3d 293, 314 (3d Cir.2004). As

the Court of Appeals has observed when advising against excessive reliance on

motions in limine to exclude evidence under Rule 403:

[M]otions in limine often present issues for which final decision is

best reserved for a specific trial situation. American Home, 753 F.2d

at 324; cf. Luce v. United States, 469 U.S. 38, 41–42, 105 S.Ct. 460,

463–64, 83 L.Ed.2d 443 (1984) (holding that criminal defendant must

testify to preserve claim of improper impeachment with prior

conviction) (“The [in limine ] ruling is subject *198 to change when

the case unfolds, particularly if the actual testimony differs from what

was contained in the defendant's proffer. Indeed even if nothing

unexpected happens at trial, the district judge is free, in the exercise of

sound judicial discretion, to alter a previous in limine ruling.”). This is

particularly true when the evidence is challenged as irrelevant or

prejudicial; the considerations weighed by the court will likely change

as the trial progresses. See Rosenfeld v. Basquiat, 78 F.3d 84, 91 (2d

Cir.1996) (“Unlike rulings that involve balancing potential prejudice

against probative value, the ruling in the present case was not fact-

bound and no real purpose other than form would have been served by

a later objection.”). We have also made clear that rulings excluding

evidence on Rule 403 grounds should rarely be made in limine. “[A ]

court cannot fairly ascertain the potential relevance of evidence for

Rule 403 purposes until it has a full record relevant to the putatively

objectionable evidence. We believe that Rule 403 is a trial-oriented

rule. Precipitous Rule 403 determinations, before the challenging

party has had an opportunity to develop the record, are therefore

unfair and improper.” Paoli I, 916 F.2d at 859; see also In re Paoli

R.R. Yard PCB Litig., 35 F.3d 717, 747 (3d Cir.1994) ( “Paoli II” ).

Under these and similar circumstances, if a district court makes a

tentative pre-trial ruling, it has the opportunity to “reconsider [its] in

limine ruling with the benefit of having been witness to the unfolding

events at trial.” United States v. Graves, 5 F.3d 1546, 1552 (5th

Cir.1993).

Walden, 126 F.3d at 518 n. 10.

The Third Circuit has thus cautioned that “pretrial Rule 403 exclusions

should rarely be granted. . . . Excluding evidence as being more prejudicial than

probative at the pretrial stage is an extreme measure that is rarely necessary,

because no harm is done by admitting it at that stage.” In re Paoli R. Yard PCB

Litig., 916 F.2d 829, 859 (3d Cir. 1990); see also Spain v. Gallegos, 26 F.3d 439,

453 (3d Cir. 1994) (noting that the Third Circuit’s “cautious approach to Rule 403

exclusions at the pretrial stage”). Moreover, the Third Circuit has characterized

Rule 403 as a “trial-oriented rule” such that “[p]recipitous Rule 403

determinations, before the challenging party has had an opportunity to develop the

record, are . . . unfair and improper.” In re Paoli R. Yard PCB Litig., 916 F.2d at

859.

B. Application of These Principles to The Parties’ Proffered Expert

Testimony Regarding PTSD, Sexual Trauma, Causation and

False or Fallible Recollection

In the instant case, we must consider in the first instance how to apply these

guiding principles to Dr. Pittman’s expert testimony regarding R.D.’s diagnosis of

PTSD, bi-polar and borderline personality disorders, and depression, as well as any

causal connection Dr. Pittman attempts to draw between these conditions and any

sexual violence that R.D. may have experienced, including sexual violence at the

hands of N.S. while under the care of Camp Shohola staff. In addressing these

issues, we do not write upon a blank slate. Quite the contrary, other courts have

paved the way, striking the balance between the permissible scope of expert

witness testimony concerning PTSD diagnoses and causation, and testimony which

improperly encroaches upon the fact-finding prerogatives of the jury. See e.g.,

Tardif v. City of New York, 344 F. Supp. 3d 579, 596 (S.D.N.Y. 2018); Clark v.

Edison, 881 F. Supp. 2d 192, 201 (D. Mass. 2012); Discepolo v. Gorgone, 399 F.

Supp. 2d 123 (D. Conn. 2005); Isely v. Capuchin Province, 877 F. Supp. 1055,

1057 (E.D. Mich. 1995). Notably, a number of these decisions collected cases from

across the United States that speak to these questions and addressed this issue in

the very factual context presented here: allegations of PTSD and related ailments

allegedly caused by a specific act of sexual violence. Clark v. Edison, supra;

Discepolo v. Gorgone, supra; Isely v. Capuchin Province, supra.

These cases provide several useful guideposts for us in assessing the

proffered testimony of Dr. Pittman. At the outset, on one hand, assuming that Dr.

Pittman is qualified to render medical opinions in this field, and subject to any

inquiry into the sufficiency of the means by which the doctor arrived at his

diagnosis, these cases would generally permit testimony concerning the diagnosis

of R.D. as suffering from PTSD. Id. Moreover, courts have also typically permitted

general testimony that PTSD, or post traumatic stress disorder, is caused by some

emotional trauma, which may include sexual violence. Id.

On the other hand, those courts that have considered this type of expert

testimony uniformly agree that allowing the expert to testify in a fashion which

opines as to the credibility of the plaintiff’s specific allegations of sexual abuse is

improper, over-reaching, and intrudes into the core function of the jury, assessing

witness credibility. See Isely v. Capuchin Province, 877 F. Supp. 1055, 1067 (E.D.

Mich. 1995) (“It is clear to the Court that, based even on her own testimony, [t]he

[expert] should not be permitted to testify that she either believes Mr. Isely or

believes that the incidents he alleges occurred. . . .”) cited by Discepolo v.

Gorgone, 399 F. Supp. 2d 123, 130 (D. Conn. 2005). As one court as observed:

“The principal danger in admitting th[is] testimony is the possibility that the jury

will interpret the expert's testimony, explicitly or implicitly, as an opinion that the

plaintiff is credible.” Clark v. Edison, 881 F. Supp. 2d 192, 216 (D. Mass. 2012).

Therefore, as a general rule “experts may not opine as to the credibility of

plaintiff's memories or as to whether the alleged abuse actually occurred, and the

Court will underscore that point to the jury with appropriate instructions and

cautions.” Clark, 881 F. Supp. 2d at 217.

Given these areas of emerging legal consensus, the principal remaining area

of legal discord entails the question of what other expert testimony may be

permitted, beyond a diagnosis of PTSD and general testimony that PTSD is caused

by some emotional trauma, including sexual violence. On this issue, courts are

divided. Some courts, presented with strong evidence tying the plaintiff’s PTSD to

sexual violence of some sort, have permitted the expert witness to further testify

that the plaintiff’s PTSD symptoms “are consistent with” PTSD triggered by

sexual trauma without allowing the expert to vouch for the plaintiff’s credibility by

testifying that any particular trauma alleged by the plaintiff caused these

symptoms.. See e.g., Clark v. Edison, supra; Isely v. Capuchin Province, supra

(collecting cases). In other instances, where the causal connection between PTSD

and a specific form of trauma has been less precise, courts have exercised their

discretion to preclude such testimony. Tardif v. City of New York, 344 F. Supp. 3d

579, 597-604 (S.D.N.Y. 2018).

Further case law acknowledges that the proponent of this form of psychiatric

expert testimony may not avoid the need to demonstrate a causal connection

between the diagnosis and some type of traumatic event by simply asserting that

the trauma exacerbated a mental condition. As one court has noted, such “parsing

[between conditions caused by an event and those exacerbated by some event] is

unhelpful. Regardless of the original cause of [a plaintiff’s] mental disorders . . . to

conclude that Defendants’ conducted exacerbated [the plaintiff’s condition]

requires a finding that Defendants caused that exacerbation.” Id. at 602.

We believe that all of these issues which relate to the proper scope of Dr.

Pittman’s testimony require further development of the factual record through s

Daubert hearing.

Case law also recognizes a countervailing concept in cases involving sexual

trauma PTSD claims: Where the proponent of a PTSD claim is permitted expert

testimony, properly focused rebuttal expert testimony should also be allowed. See

e.g., Tardif v. City of New York, supra; Clark v. Edison, supra. Thus, in these

circumstances, courts have permitted rebuttal expert testimony challenging a

diagnosis of PTSD, Tardif v. City of New York, supra, or contesting testimony

regarding the scientific support for the concept of repressed memories. Clark v.

Edison, supra.

This latter point sets the stage for consideration of Dr. Loftus’ proposed

expert testimony. In our view, Dr. Loftus’ expert report, (Doc. 175-1, pp. 83-6), is

intended as an expert rebuttal report attacking the conclusions reached by Dr.

Pittman. While this is a proper purpose for an expert report, the plaintiff argues

that there are several potentially problematic aspects to Dr. Loftus’ report. First, to

the extent that Dr. Loftus’s report consists of little more than a generalized attack

upon the vagaries of human recollection, the plaintiff contends courts have been

reluctant to permit such testimony, reasoning that the uncertainties that may cloud

our ability to recall are matters within the ken of jurors that do not require expert

testimony. This rationale has been relied upon by other courts to exclude similar

proffered testimony of a general nature relating to the uncertainty of human

recollection. United States v. Libby, 461 F. Supp. 2d 3, 10 (D.D.C. 2006)

(excluding expert testimony, including testimony by Dr. Loftus). While this may

be so, we are also constrained to observe that, in the context of a criminal sexual

assault case, the Court of Appeals has held that that it was error to categorically

exclude expert testimony regarding errors and subconscious influences in

eyewitness recollection. United States v. Stevens, 935 F.2d 1380, 1400 (3d Cir.

1991). Thus, development of a factual record through a Daubert hearing is

essential to a fully-informed resolution of this question.

Similarly, Dr. Loftus’ report contains a critique of the scientific validity of

the concept of repressed memory, the idea that traumatic memories may be

subconsciously suppressed but accurately recovered many years later. In cases

where repressed memory is an issue, courts have recognized that rebuttal expert

testimony challenging the scientific support for the concept of repressed memories

may be appropriate. Clark v. Edison, supra. The plaintiff, however, insists that this

proffered expert testimony would be inappropriate since R.D. does not allege that

he experienced a repressed memory; he simply insists that he delayed in reporting

this alleged sexual assault for a period of time. Therefore, further clarification of

the claims and defense to be presented at trial through a Daubert hearing would be

central to the resolution of this particular issue.

C. Conclusions

Based upon the foregoing legal analysis, we reach the following conclusions

regarding the parties’ competing motions relating to expert witness testimony

regarding the psychological issues presented in this case.

First, to the extent that the parties’ motions sought to categorically exclude

expert testimony (Docs. 174, 203, 253), without a further Daubert hearing, the

motions are DENIED.

Second, we will schedule a Daubert hearing in this case on September 13,

2019 at 10:00 a.m. at a location to be selected in consultation with counsel.

Third, pending this hearing, and subject to any supplemental findings made

by the Court based upon information presented at the hearing, IT IS ORDERED

that: “experts may not opine as to the credibility of plaintiff's memories or as to

whether the alleged abuse actually occurred, and the Court will underscore that

point to the jury with appropriate instructions and cautions.” Clark v. Edison, 881

F. Supp. 2d 192, 217 (D. Mass. 2012).

Fourth, pending this hearing, and subject to any supplemental findings made

by the Court based upon information presented at the hearing, for the reasons set

forth in this Memorandum Opinion IT IS ORDERED that the proffered testimony

of Dr. Sorrentino will be excluded from the trial of this case, unless the proponent

of that testimony provides a more detailed and fulsome offer of proof which

demonstrates the relevance of this testimony, and shows both the reliability and fit

of the doctor’s opinion to the remaining issues in this case.

Fifth, in preparation for this hearing, on or before September 9, 2019, the

parties shall file status reports advising the court regarding the following matters:

(1) whether any party contests the qualifications of the proposed medical expert

witnesses; (2) whether any party contests R.D.’s PTSD diagnosis; and (3) whether

the parties have reached agreement on any other aspects of the scope of the

proposed expert witness testimony.

Sixth, at the Daubert hearing, the parties should specifically be prepared to

address the proper scope of the proposed testimony of Dr. Pittman and Dr. Loftus,

and specifically be prepared to address: (1) whether Dr. Pittman should be

permitted to testify that R.D.’s PTSD is consistent with sexual trauma; (2) whether

the evidence provides sufficient proof of causation to allow Dr. Pittman to testify

regarding exacerbation of R.D.’s bi-polar and borderline disorders, and depression;

and (3) to what degree may Dr. Loftus provide rebuttal testimony relating to

human recollection. The parties’ positions on these questions should also be

presented to the court in the status reports filed on September 9, 2019.

An appropriate order follows.

S/Martin C. Carlson

MARTIN C. CARLSON

United States Magistrate Judge