"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

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 one another,

and the statements of some witnesses contain some internal contradictions and

inconsistencies.

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

this opinion.

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. It was

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

sought to shape, define and limit the expert psychological evidence that may be

presented to the jury. (Docs. 174, 203, and 253.) These motions sought pre-trial

rulings addressing the proffered testimony of several medical witnesses. In

particular, the motions sought pre-trial rulings regarding the admissibility of the

testimony of two expert witnesses, Dr. Roger Pitman and Dr. Elizabeth Loftus.

For its part, Shohola filed two motions challenging the proposed anticipated

testimony of Dr. Roger Pitman, an expert witness retained by the plaintiff. (Docs.

203, 253.) Dr. Pitman 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. Pitman was prepared to testify to a range of

matters. For example, it was proffered that Dr. Pitman could testify that he diagnosed

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

as depression. The plaintiff also proposed that Dr. Pitman would be prepared to

testify that sexual trauma can cause PTSD and substantially contribute to the onset

or exacerbation of these other disorders. In addition, the plaintiff was prepared to

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

with PTSD caused by sexual violence, and more specifically testify that the clinical

cause of R.D.’s PTSD was N.S.’s 2007 sexual assault of the plaintiff while on this

Camp Shohola excursion. 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, filed a motion in limine to exclude the testimony of a

defense expert, Dr. Elizabeth Loftus. (Doc. 174.) Dr. Loftus had never examined or

treated R.D. but was proffered as an expert witness who can testify to the inaccuracy

and vagaries of human recollection.2 According to the plaintiff, this proposed expert

2 In addition, the defense had proffered another expert witness, Dr. Sorrentino. The

thrust of Dr. Sorrentino’s proffered testimony as described in her expert report was

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

and should, therefore, be excluded from the trial of this case.3

that N.S.’s specific propensity for sexual violence was not foreseeable. (Doc. 175-

1, pp. 90-3.) We have addressed this proffered testimony finding that it is

inadmissible for a host of reasons. First, 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 was misplaced and was not directly relevant to the remaining claim in

this case. Moreover, and more fundamentally, Dr. Sorrentino’s report revealed that

the doctor had never seen, treated, or examined N.S. and her assessment of

foreseeability of risk was based upon reading exhibits and deposition transcripts

which simply indicated that the defendants had no prior notice of sexual predation

by N.S. We found that while Dr. Sorrentino’s recitation of this factual testimony

might add a certain academic cachet to this evidence, it was not proper expert

testimony. Further, the summary report of Dr. Sorrentino did 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 concluded

that we would not permit this expert testimony at trial, absent some much more

compelling showing of relevance, reliability, and fit. Shohola has made no such

further showing.

3 The defendant has also proffered as an expert witness, Dr. Avram Mack, a

psychiatrist who has examined R.D. and who opines that he does not suffer from

PTSD. The plaintiff has not specifically challenged Dr. Mack’s suitability as an

expert witness under the standards prescribed by the Supreme Court in Daubert v.

Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469

(1993), but has reserved the right to actively challenge that testimony at trial.

Nonetheless in order to comprehensively address these expert witness issues, we

will make some specific findings with respect to Dr. Mack in this opinion.

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

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 we recognize that 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, we are mindful that 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). Accordingly, on November 7, 2019, we conducted a Daubert

hearing in this case focusing on the proffered testimony of Dr. Pitman and Dr.

Loftus, as well as the testimony of Dr. Mack. We also invited and received

supplemental briefs from the parties outlining their respective positions regarding

these expert witnesses. (Docs. 353 and 354). We have carefully considered the

written submissions of the parties, as well as the testimony and exhibits presented at

this hearing.

Having conducted this review, for the reasons set forth below, we will permit

testimony by Dr. Pitman, as described below, and will allow Dr. Mack to testify

consistent with his expert report, but we will exclude the testimony of Dr. Loftus.

II. Discussion

A. 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. 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)).

In order to be reliable, an expert’s opinion must not be speculative or rest upon

conjecture. Simply put” “[a]n expert's opinion is reliable if it is ‘based on the

“methods and procedures of science” rather than on “subjective belief or

unsupported speculation”; the expert must have ‘good grounds’ for his or her

belief.’” Elcock v. Kmart Corp., 233 F.3d 734, 745 (3d Cir. 2000). Further, “under

Pennsylvania law, an expert . . . [typically] must testify to a ‘reasonable degree of

medical certainty,’ a standard which cannot be met if the expert testimony is based

on speculation.” Pritchard v. Dow Agro Scis., 705 F. Supp. 2d 471, 493 n. 18 (W.D.

Pa. 2010), aff'd, 430 F. App'x 102 (3d Cir. 2011) (citing Griffin v. University of

Pittsburgh Medical Center–Braddock Hosp., 950 A.2d 996 (Pa. Super. Ct. 2008)).

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).

B. Application of These Principles to Expert Testimony Regarding

PTSD, Sexual Trauma, and Causation

In the instant case, when we consider how to apply these guiding principles to

the expert testimony proffered here, 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 proffered

expert testimony concerning PTSD diagnoses. At the outset, assuming that a witness

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 expert testimony concerning any PTSD diagnosis of R.D.

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. However, 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. . . .”); see also Discepolo,

399 F.Supp.2d at 130. 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, 881

F.Supp.2d at 216. 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.” Id., 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 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). 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 expert testimony challenging that diagnosis 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 expert testimony challenging a diagnosis of

PTSD. Tardif v. City of New York, supra.

One further factor complicates a determination of the proper scope of expert

testimony in this field. PTSD is unique among the conditions set forth in the

Diagnostic Statistical Manual (DSM) V. For the most part, the DSM eschews any

attempt to identify the cause of a psychiatric condition, recognizing that a host of

environmental, genetic, and emotional factors combine to shape any mental health

diagnosis. However, by its very nature PTSD is triggered by some specific trauma.

Therefore, the first diagnostic criteria (criteria A) for PTSD entails some

determination of the particular trauma that is the clinical cause of the PTSD, coupled

with an evaluation of other criteria, such as persistent intrusion of the traumatic event

in the subject’s thoughts and persistent efforts at avoidance of the distressing trauma,

(criteria B and C), which provide confirming evidence that that a specific trauma

was the root cause of the stress disorder. The identification of this triggering trauma,

which is part of a diagnosis for PTSD, is sometimes referred to as clinical causation.

C. Dr. Mack and Dr. Pitman May Testify Regarding Their Diagnoses

of R.D. In Addition, Dr. Pitman May Testify that R.D.’s PTSD is

Consistent with PTSD Resulting from Sexual Trauma.

Applying the Daubert standards to the proffered testimony of Dr. Mack and

Dr. Pitman, we have little difficulty concluding that these two psychiatrists may

testify regarding their competing diagnoses regarding the nature of R.D.’s emotional

impairments. At the outset, it is undisputed that both Dr. Mack and Dr. Pitman are

fully qualified to proffer expert psychiatric opinions. Therefore, the first element of

the Daubert standard—expert qualifications—is satisfied with respect to both of

these witnesses.

As for the second Daubert criterion—reliability of the opinion testimony—in

both instances these expert witnesses base their opinions and conclusions upon

examinations of R.D. and test results, along with a review of R.D.’s medical records

and treatment history. These examination techniques are widely accepted within the

field of psychiatry, have been subject to peer review over time, are generally

regarded as reliable forensic techniques within this field, and were undertaken in

ways that appear to fully comport with governing professional norms. Thus, the

examinations performed by Dr. Mack and Dr. Pitman appear to meet the reliability

factors prescribed by the courts, which consider:

(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. Further, these expert opinions are expressed with a

reasonable degree of scientific certainty, yet another benchmark of reliability.

Pritchard v. Dow Agro Scis., 705 F. Supp. 2d 471, 493 n. 18 (W.D. Pa. 2010), aff'd,

430 F. App'x 102 (3d Cir. 2011).

Finally, the diagnostic reports and opinions submitted by both doctors in our

view satisfy the third, and final criterion prescribed by Daubert—they fit the facts

of this case by providing expert guidance concerning one of the pivotal issues in the

case; namely, whether R.D. suffers from PTSD. Therefore, both expert witnesses

will be permitted to testify to these opinions.

Having concluded that Dr. Pitman’s medical, psychiatric opinion diagnosing

R.D. as suffering from PTSD satisfies the Daubert test, we will permit the doctor to

testify, not only to his diagnosis, but also to the fact that PTSD results from trauma,

which may include sexual trauma. On this score, for gatekeeping purposes pursuant

to the Supreme Court’s dictates in Daubert, we find that Dr. Pitman has persuasively

articulated a close correlation between sexual trauma identified as the PTSD criteria

A, and the other PTSD criteria, most notably the criteria B and C factors which focus

upon persistent intrusion of the traumatic event in the subject’s thoughts and

persistent efforts at avoidance of the distressing trauma. In permitting this additional

testimony, we will also follow the path taken by other courts, which have allowed

similar testimony in cases involving alleged PTSD injuries. Clark v. Edison, supra;

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

We recognize that Dr. Pitman is prepared to go further in his diagnosis and

opinion regarding R.D.’s mental state, and is prepared to testify that, in his opinion,

the clinical cause of R.D.’s PTSD is the sexual assault that took place in 2007 while

R.D. was in the care of Camp Shohola staff. Dr. Pitman expresses the opinion

regarding clinical causation, while acknowledging that he has no direct knowledge

regarding the question of what actually took place in 2007. Thus, the plaintiff would

proffer Dr. Pitman as a witness who could testify that, if the jury found that R.D.

was sexually assaulted in 2007, then that assault was the clinical cause of his PTSD.

We acknowledge that, in some other factual contexts involving fatalities

courts have voiced a willingness to consider expert clinical causation testimony.4

We also concede, as the plaintiff has argued, that some courts appear to have also

permitted experts testifying regarding PTSD diagnoses to discuss clinical causation

in a variety of ways. United States v. Lukashov, 694 F.3d 1107, 1116 (9th Cir. 2012);

G.G. v. Grindle, 665 F.3d 795, 798 (7th Cir. 2011); United States v. Whitted, 11 F.3d

782, 785 (8th Cir. 1993); Weidman v. Colvin, 164 F. Supp. 3d 650, 684 (M.D. Pa.

2015); Schoolcraft v. City of New York, No. 10 CIV. 6005 RWS, 2015 WL 6444620,

at *1 (S.D.N.Y. Oct. 23, 2015); State v. Alberico, 116 N.M. 156, 176, 861 P.2d 192,

212 (N.M.1993); State v. Allewalt, 308 Md. 89, 102, 517 A.2d 741, 747 (1986). As

to the legal authority cited by the plaintiff, however, we make the following

observations: First, at least some of these cases expressly acknowledge the concern

4 See Wichterman v. City of Philadelphia, 2019 U.S. Dist. LEXIS 103770, *23

(E.D. Pa. 2019) (“This extensive experience in the field of addiction medicine

qualifies Wakeman to use testimony and forensic toxicology evidence to opine

about the clinical cause of Wichterman’s death.”); Carlock v. People of the Virgin

Islands, 2010 U.S. Dist. LEXIS 142428, *3 (D.V.I. 2010) (“The treating

emergency medical technician and the pathologist who examined Reid’s body also

testified to the extent of Reid’s injuries and clinical cause of death.”); Martinez

Perez v. Hyundai Motor Co., 440 F. Supp. 2d 57, 76 (D.P.R. 2006) (“Her

testimony was strictly limited to the clinical cause of death.”)

which animates us in this case, a concern that expansive expert testimony in this area

may intrude upon the province of the jury. State v. Alberico, supra. Second, some of

this legal authority arises in the context of Social Security litigation, appeals of non-

jury administrative proceedings where the risks of confusion for a lay jury are non-

existent. Weidman v. Colvin, supra. Finally, and perhaps most persuasively, a

number of these cases appear to have limited the expert witness to testifying that the

PTSD symptoms were consistent with sexual trauma. United States v. Lukashov,

supra; United States v. Whitted, supra.

While we acknowledge this legal authority, in this setting we believe that even

carefully defined clinical causation testimony may be prejudicial and create

confusion for the jury, since the use of the term causation may imply to jurors an

expert opinion on the ultimate factual issue in this case; namely, whether R.D. was

assaulted in 2007 while in the care of Camp Shohola. Such testimony may be unduly

prejudicial since it is clear 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, 881 F.Supp.2d at 217. Accordingly, we will limit Dr. Pitman to

testifying 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).

E. Dr. Pitman May Also Testify that R.D.’s PTSD Was a Substantial

Contributing Factor in the Onset and Severity of His Other

Diagnosed Conditions.

There is one final aspect of Dr. Pitman’s proffered expert testimony which we

must address. In addition to his opinions regarding R.D.’s PTSD diagnosis and its

causation, Dr. Pitman has also opined that R.D.’s PTSD was a substantial

contributing factor in the onset and severity of his depression, anxiety and other

emotional disorders. On this score, Dr. Pitman has expressed this opinion within a

reasonable degree of medical certainty, and he has bolstered his opinion both by the

results of his own examination and testing of R.D., and through reliance upon a

substantial body of scientific peer review studies which have drawn significant

correlations between PTSD and other emotional conditions. Indeed, Dr. Pitman cites

to no less than 20 studies which provide some empirical support for his opinions that

R.D.’s PTSD was a substantial contributing factor in the onset and severity of his

other emotional impairments. (Doc. 341). Particularly persuasive among these

studies were those studies that involved twins, one of whom was exposed to

significant trauma. These studies, which show a correlation between PTSD and other

emotional conditions, in our view strengthened the reliability of any inference that

PTSD contributes to the onset and severity of other conditions, since twin studies

like those cited by Dr. Pitman largely eliminate genetic and environmental variables

which could otherwise distort test outcomes.

Provided that an opinion meets the Daubert reliability and fit tests, and is

expressed with a reasonable degree of certainty, an opinion that states that some

condition was a substantial contributing factor to a plaintiff’s injury is proper under

Pennsylvania tort law. Thus, “[e]xpert testimony is admissible when, taken in its

entirety, it expresses reasonable certainty that [an event] was a substantial factor in

bringing about [an] injury. The expert need not express his opinion in precisely the

same language we use to enunciate the legal standard.” In re Paoli R.R. Yard PCB

Litig., 35 F.3d 717, 750 (3d Cir. 1994) (quoting Cohen v. Albert Einstein Medical

Ctr., 405 Pa.Super. 392, 592 A.2d 720, 724 (1991), appeal-denied, 529 Pa. 644, 602

A.2d 855 (1992) (quoting Kravinsky v. Glover, 263 Pa.Super. 8, 396 A.2d 1349

(1979)). Further,

The substantial factor test applies when a number of different factors

each contribute to a particular result; “if two forces are actively

operating, one because of the actor's negligence, the other not because

of any misconduct on his part, and each of itself is sufficient to bring

about harm to another, the actor's negligence may be found to be a

substantial factor in bringing it about.”

In re Paoli R.R. Yard PCB Litig., 35 F.3d at 761 n. 31 (quoting Restatement 2d of

Torts § 432). In reaching this conclusion and opinion regarding whether some event

was a substantial contributing factor to the plaintiff’s injuries “the doctor could offer

an explanation based on the plaintiff’s medical history, laboratory tests or any other

reliable source.” Id., at 760.

In this case, Dr. Pitman has opined that R.D.’s PTSD was a substantial

contributing factor in the onset and severity of his depression and other emotional

conditions. The doctor expresses this opinion to a reasonable degree of medical

certainty, and the opinion is supported by the doctor’s examination and testing of

R.D., combined with R.D.’s medical history which revealed no significant history

of psychiatric or psychological problems prior to 2007, and a substantial body of

scientific literature which supports the proposition that there is a correlation between

PTSD and other depressive conditions. On this score, we are mindful 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).

Accordingly, we find that this opinion that R.D.’s PTSD contributed significantly to

his other impairments has sufficient indicia of reliability that it may be admitted into

evidence at trial.

F. Dr. Loftus’ Testimony Will Be Excluded at Trial.

Finally, we turn to consideration of Dr. Elizabeth Loftus’ proposed expert

testimony. Like Dr. Mack and Dr. Pitman, Dr. Loftus undoubtedly possesses the

professional qualifications to serve as an expert witness in certain fields of

psychology, particularly as it pertains the science of human recollection. However,

in many ways Dr. Loftus’ history as an expert witness and her proffered testimony

in this case parallel the development of the law in this field and underscore the

limitations on such expert testimony. This case law has been marked by several

recurring themes. First, courts have recognized that expert testimony concerning the

vagaries of human recollection that is stated with sufficient certainty, is grounded

upon reliable science, and fits the facts of the case satisfies the Daubert standard and

should be admitted at trial. See generally United States v. Mathis, 264 F.3d 321, 336

(3d Cir. 2001). In contrast, expert opinions regarding the science of human

recollection that are not presented with certainty, lack scientific rigor, or possess

only a tenuous factual fit are often excluded from evidence. Id.

Further, one other consideration cautions in favor of careful judicial oversight

in this field. Left unregulated, memory expert testimony can invade the fundamental

province of the jury—determining witness credibility. Therefore, where proffered

expert testimony regarding the fallibility of human recall “falls within the common

knowledge of the average layman, [it] is improper testimony under Rule 702.”

United States v. Shiraishi, No. CR 17-00582 JMS-RLP, 2019 WL 1386365, at *5

(D. Haw. Mar. 27, 2019) citing United States v. Labansat, 94 F.3d 527, 530 (9th Cir.

1996) (“It is common knowledge that memory fades with time.”); United States v.

Carter, 410 F.3d 942, 950 (7th Cir. 2005) (“In general, however, jurors understand

that memory can be less than perfect.”); Libby, 461 F. Supp. 2d at 12 (“[J]urors

inevitably encounter the frailties of memory as a commonplace matter of course.”);

United States v. Heine, 2017 WL 5260784 (D. Or. Nov. 13, 2017) (finding that

memories are fallible and may deteriorate over time to be “within the ken of the

ordinary juror”).

In our view, the defendant’s supplemental brief (Doc. 353) aptly illustrates

how the general principles specifically apply to the proffered testimony by Dr.

Loftus as an expert witness. Thus, the legal authority cited by Shohola acknowledges

what all parties concede, Dr. Loftus has sufficient qualifications to express expert

opinions relating to certain questions concerning memory science. Dennis v. Sec'y,

Pennsylvania Dep't of Corr., 834 F.3d 263, 325 (3d Cir. 2016) (McKee, J.

concurring). These cases also underscore that, when there is an appropriate showing

of relevance and fit, Dr. Loftus’ testimony may be admitted. DeLong v. State, No.

2-04-410-CR, 2006 WL 3334061, at *3 (Tex. App. Nov. 16, 2006) (discussing

testimony by Dr. Loftus that “false memories can be induced in the mind of a witness

under circumstances similar to those surrounding the outcry statements of the

complainants in this case.”) (emphasis added). However, the legal authority cited by

Shohola also emphatically underscores that, with respect to Dr. Loftus, her proffered

expert testimony must satisfy both the Daubert reliability and fit requirements to be

admissible. Further, the cases relied upon by Shohola in its supplemental brief make

it clear that proffered expert testimony by Dr. Loftus which simply restates matters

within the common understanding of lay jurors is inadmissible. United States v.

Shiraishi, No. CR 17-00582 JMS-RLP, 2019 WL 1386365, at *5 (D. Haw. Mar. 27,

2019); United States v. Libby, 461 F. Supp. 2d 3, 10 (D.D.C. 2006).

These considerations, which are underscored by the cases cited by Shohola,

lead us to conclude that Dr. Loftus’ testimony should be excluded in this case. In our

view, several factors combine to undermine the reliability and fit of Dr. Loftus’

proffered expert testimony. First, unlike Dr. Mack and Dr. Pitman, Dr. Loftus has

never examined, tested, or even met R.D. Thus, her opinions rest upon a review of

selected documents provided to her by counsel. Consequently Dr. Loftus’ 3 ½ page

expert report (Defendant Exhibit 3), stands in stark contrast to the far more extensive

and detailed expert reports provided by Dr. Mack and Dr. Pitman.

Moreover, Dr. Loftus’ report presents her opinions in a singularly equivocal

and speculative fashion. Dr. Loftus does not express her view to a reasonable degree

of medical certainty, the benchmark standard of reliability typically sought by the

courts and Pennsylvania law. Griffin v. University of Pittsburgh Medical Center–

Braddock Hosp., 950 A.2d 996 (Pa. Super. Ct. 2008); Pritchard v. Dow Agro Scis.,

705 F.Supp.2d 471, 493 n. 18 (W.D. Pa. 2010), aff'd, 430 F. App'x 102 (3d Cir.

2011). Instead, these views are stated as a series of conjectural hypotheses. For

example, Dr. Loftus’ report suggests that in her testimony, she could explain how

“suggestion may lead individuals to the construction of false memories, and how

suggestion may have done so in this case.” (Id. at 3) (emphasis added). Expert

testimony cast in terms of “mays” and “mights” is inherently less reliable than

opinions stated with a reasonable degree of scientific certainty.

Further, many of the propositions about which Dr. Loftus proposed to testify

are matters well within the ken of a lay jury. For example, the notion that memories

deteriorate over time is well within the understanding of a jury without the aid of an

expert. United States v. Heine, 2017 WL 5260784 (D. Or. Nov. 13, 2017). Likewise,

the concept that witnesses can vehemently recall events in a faulty matter is readily

understood and is something that falls within the common experience of jurors.

Therefore, much of Dr. Loftus’ proffered testimony falls within the category of

common knowledge, a factor that has often led other courts to exclude this proffered

testimony from Dr. Loftus. United States v. Shiraishi, No. CR 17-00582 JMS-RLP,

2019 WL 1386365, at *5 (D. Haw. Mar. 27, 2019); United States v. Heine, 2017 WL

5260784 (D. Or. Nov. 13, 2017) (finding that memories are fallible and may

deteriorate over time to be “within the ken of the ordinary juror”); United States v.

Libby, 461 F. Supp. 2d 3, 10 (D.D.C. 2006) (excluding expert testimony, including

testimony by Dr. Loftus).

Other aspects of the proffered testimony set forth in Dr. Loftus’ report simply

do not fit the facts of this case. Thus, in her report Dr. Loftus proposed to debunk

the idea of repressed memory, but the plaintiff does not allege that he recovered a

repressed memory. Instead, R.D. asserts that he has always recalled the trauma of

this alleged incident but delayed disclosing it for a period of time because the

recollection was too painful.

In an effort to bolster this expert report, Dr. Loftus testified at the Daubert

hearing held by the court on November 7, 2019, but that testimony did not eliminate

our concerns regarding the fit and reliability of this proffered testimony. Indeed, in

some respects Dr. Loftus seemed unprepared to undertake this task. Unlike the other

expert witnesses, in a number of instances Dr. Loftus was unable to readily cite to

scientific studies or research supporting the positions she expressed, and in fact

seemed surprised to be asked to provide empirical support for these propositions.

Defense counsel’s efforts to buttress the doctor’s testimony were often

unavailing. For example, in the course of her testimony, Dr. Loftus was asked about

“brain-spotting,” a form of treatment that R.D. allegedly underwent. In response, the

doctor testified that her knowledge of this treatment technique had been garnered in

part through Internet research, a form of research that is entitled to little weight.

Counsel then endeavored to rehabilitate this testimony by proffering scientific

articles discussing “brain-spotting,” but upon questioning by the court, Dr. Loftus

candidly admitted that she never read these articles.5

Taken as a whole, Dr. Loftus’ testimony at this hearing highlighted the

conjectural and speculative aspects of her proffered opinions. Thus, Dr. Loftus

disclaimed any ability to discern whether R.D.’s testimony was actually accurate;

she declined to identify any particular internal or external factors that she could

testify actually distorted R.D.’s recollection; and she declined to provide any expert

testimony relating to the phenomenon of intentional dissembling.6

5 This “brain-spotting” testimony was subject to a separate objection. Nothing in

Dr. Loftus’ December 2017 report made the slightest reference to “brain-spotting.”

We note that Shohola apparently concedes as much since it has now withdrawn a

“brain-spotting” exhibit from its proposed exhibit list. (Doc. 352 ¶5).

6 Our understanding of the scope of this proffered testimony was not materially

advanced through the hypothetical questions posed to the doctor at this hearing by

the proponent of her testimony, since those protracted hypotheticals were littered

with extraneous matters like self-deprecating remarks by R.D. concerning his

sexuality, and a far-fetched theory that R.D. invented this entire episode,

underwent years of therapy, and has pursued this litigation based upon an a

deliberate lie, a false statement which the defendant Shohola speculated R.D. told

as a teen in order to avoid a heterosexual encounter with a former girlfriend. We

have seen absolutely no evidence to support this speculation. But if this deliberate

mendacity is the defense theory, then Dr. Loftus, by her own admission, is not an

appropriate expert witness since the doctor testified that she has not studied the

psychology of dissembling. Thus, Dr. Loftus’ proffered testimony fits neither the

facts of this case, nor the theory of the case embraced by this hypothetical

question.

Finally, there was at least one other fatal flaw in this proffered testimony in

terms of its reliability and fit. In her expert report, Dr. Loftus recounted R.D.’s

various accounts of the sexual assault that he alleged took place, describing it as an

assault at the hands of an older boy, N.S., which involved attempted anal sex in the

course of a highly sexualized game of “Truth or Dare.” Dr. Loftus’ report then stated

that: “Testimony from two of the campers who were in the tent, [E.J. and G.M.]

dispute RD’s recollections.” (Id. at 3). Thus, Dr. Loftus posited R.D.’s statements as

a factual outlier that drew no support from any other eyewitness accounts, an

assertion that served as a major pillar of her suggestion that R.D.’s account may be

a false memory which might be the product of self-suggestion, auto-suggestion, or

some subtle external influences.

This premise materially misstates the evidence. To be sure, G.M.’s prior

statements are marked by exquisite ambiguity, as G.M. described a failure to recall

these alleged events while refusing the challenge the veracity of other witness

accounts of this sexual abuse. However, the other juvenile in the tent that evening,

E.J., has described this episode in terms that are remarkably similar to R.D.’s

account. Thus, E.J. has stated that he too was victimized by N.S. who attempted anal

intercourse with E.J. in the tent during the course of a highly sexualized game of

“Truth or Dare.”

Given this description provided by E.J., Dr. Loftus’ suggestion that E.J.’s

account of these events disputes R.D.’s recollection is plainly wrong. Quite the

contrary, E.J.’s statements graphically confirm and corroborate R.D.’s description

of these events. This factual error, in turn, undermines the reliability and fit of the

doctor’s opinions in a number of respects. First, it obliterates the premise that R.D.’s

recollection is a factual outlier. Second, we are constrained to note that there is no

indication that E.J. and R.D. have maintained contact with one another or compared

accounts of this incident. Further, it is evident that these two young men have

experienced entirely different internal influences and external environments since

2007. Thus, in order to find that Dr. Loftus’ proffered testimony has sufficient

reliability and fit to be presented at trial, we would have to conclude that the

remarkably congruent accounts of these two disparate witnesses were false accounts

that were somehow simultaneously and spontaneously generated by a series of

unrelated and unconnected internal and external influences. Nothing in Dr. Loftus’

testimony supported the notion of spontaneous synchronicity in the creation of false

memories by disparate witnesses. Therefore, this testimony lacks the requisite

reliability and fit required under Daubert in the circumstance presented here.

Thus, as to Dr. Loftus we are left in the same position as the one of the most

recent courts which has considered, and rejected, her proffered testimony, the district

court in United States v. Shiraishi, No. CR 17-00582 JMS-RLP, 2019 WL 1386365,

at *6 (D. Haw. Mar. 27, 2019), which found that:

In sum, the court does not question Loftus' expertise or qualifications.

And the court certainly agrees that, in the right case, her testimony may

aid a jury in understanding [aspects of human memory]. But her

testimony is simply not a fit for this case . . . . Thus, the court must

exercise its gate-keeping role under Daubert and exclude Loftus' expert

testimony.

Id.

Yet while we find that this proffered testimony fails to meet the Daubert

standards of reliability and fit, we note that this ruling does not completely preclude

Shohola from presenting evidence regarding these matters and arguing this issue at

trial. Quite the contrary, Dr. Mack, whose proffered expert testimony we have found

satisfies Daubert, expressly addresses alleged inconsistencies in R.D.’s accounts of

this incident as part of his opinion discounting a PTSD diagnosis for R.D. in this

case. Instead, we simply conclude that Dr. Loftus’ proffered testimony does not meet

the standards prescribed by law and must therefore be excluded.

An appropriate order follows.

S/Martin C. Carlson

MARTIN C. CARLSON

United States Magistrate Judge

Dated: November 15, 2019

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. :

O R D E R

AND NOW, this 15th day of November 2019, following a Daubert hearing

and consideration of the parties’ submissions, and in accordance with the

accompanying Memorandum Opinion, IT IIS ORDERED as follows:

1. The expert testimony of Dr. Avram Mack and Dr. Roger Pitman regarding

their diagnoses of R.D. will be permitted at trial.

2. Dr. Pitman will also be permitted to testify: (1) that PTSD is caused by

trauma, including sexual trauma; (2) that R.D.’s PTSD diagnosis is

consistent with PTSD caused by sexual trauma; and (3) that R.D.’s PTSD

was a substantial contributing factor in the onset and severity of his other

mental health conditions. In order to avoid juror confusion or intrude into

the province of the jury to determine credibility, Dr. Pitman will not be

permitted to express a clinical causation opinion specifically linking R.D.’s

PTSD to events in 2007. Upon request, we will also provide an appropriate

cautionary instruction to the jury regarding this expert testimony.

3. Finding that it lacks the requisite reliability and fit in the facts of this case,

the proffered expert testimony of Dr. Elizabeth Loftus will be excluded at

trial.

S/Martin C. Carlson

MARTIN C. CARLSON

United States Magistrate Judge