The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
JOY PARNES and BRIAN
PARNES,
Plaintiffs,
Vv. Case No. 6:23-cv-854-JA-LHP
ORANGE COUNTY SCHOOL
BOARD,
Defendant.
ORDER
Before the Court is the Daubert motion of Defendant, Orange Count
School Board (the Board).! (Doc. 53). Based on the Court’s review of the parties
submissions, the motion must be granted in part and denied in part.
I. BACKGROUND
In May 2023, Joy and Brian Parnes filed this lawsuit against the Boar
for disability discrimination and retaliation related to the education of thei
minor daughter, S.P. (Doc. 1 at 15-25). Pursuant to Rule 702, the Parnese
seek to introduce the opinion testimony of Timothy Conway, Ph.D. in support o
their theory that S.P. requires accommodations and the cost of thos
accommodations including private schooling. Fed. R. Evid. 702. The Board nov
1 Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).
moves to exclude all of Dr. Conway’s testimony.
II. LEGAL STANDARD
Federal Rule of Evidence 702 governs the admissibility of expert opinio
testimony and “compels” the Court “to perform [a] critical ‘gatekeepin:
function.” United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004) (e
banc) (quoting Daubert, 509 U.S. at 589 n.7, 597); see Fed. R. Evid. 702 □□
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’
scientific, technical, or other specialized knowledge will help the trier of fact t
understand the evidence or to determine a fact in issue; (b) the testimony i
based on sufficient facts or data; (c) the testimony is the product of reliabl
principles and methods; and (d) the expert has reliably applied the principle
and methods to the facts of the case.”).
To decide the admissibility of an expert’s opinions, the Court “engage|[s
in a rigorous three-part inquiry” and considers (1) whether the expert i
qualified to provide the opinions, (2) whether “the methodology by which th:
expert reache[d the opinions] is sufficiently reliable,” and (3) whether it
providing the opinions, the expert will help the factfinder “understand th:
evidence or... determine a fact in issue.” Frazier, 387 F.3d at 1260 (quotin;
City of Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 548, 562 (11th Cir. 1998)).
To determine whether the expert’s methodology is reliable, the Cour
applies factors from Daubert and Joiner?: (1) whether the expert’s theory o
technique can be (and has been) tested; (2) whether the expert’s theory o
technique has been subjected to peer review and publication; (3) what the theor
or technique’s known or potential rate of error is, and whether there ar
standards controlling its operation; (4) whether the theory or technique i
generally accepted in the field; and (5) whether there is an analytical ga
between the data and the opinion proffered. Daubert, 509 U.S. at 593-94
Joiner, 522 U.S. at 146; see United States v. Pon, 963 F.3d 1207, 1220 (11th Cin
June 29, 2020). “The party offering the expert has the burden of” establishin:
the expert’s qualifications, the methodology’s reliability, and the opinions
helpfulness to the factfinder “by a preponderance of the evidence.” Rink tu
Cheminova, Inc., 400 F.3d 1286, 1292 (11th Cir. 2005).
Ill. DISCUSSION
Dr. Conway was retained by the Parneses to opine on several issues it
this case, including the accommodations that S.P. requires to catch up with he
peer group and to participate in public or private school and S.P.’s need for anc
costs of healthcare services and private schooling. (Doc. 53 at 3, 16; Doc. 61 a
2, 4; Doc. 61-4 at 4). Dr. Conway wrote in his expert report (Doc. 61-4) that S.P
“needs high intensity, high frequency, evidence-based intervention for he:
2 Gen. Elec. Co. v. Joiner, 522 U.S. 186, 146 (1997).
[s]pecific [l]earning [d]isorders, AD/HD and her [d]evelopmental [c]oordinatio:
[djisorder.” (Doc. 61-4 at 3). Dr. Conway opines based on his experienc
“helping students with severe and many deficits,” his review of S.P.’s medica
and school records, his evaluation of S.P., and speaking to the Parneses an
family members. (Jd. at 4; Doc. 61 at 7—8; Doc. 61-3 17, 23, 35, 36).
In fact, Dr. Conway evaluated S.P.’s records pertaining to her possibl
enrollment in the online program “Neuro-development of Words, LLC
(NOW!)—an EdTech company that Dr. Conway is affiliated with. (Doc. 61 at 7
Doc. 61-4 at 1-2, 4-5). Having done so, Dr. Conway opines that “only in-perso1
treatment... will improve [S.P.’s]...developmental difficulties that ar
essential for paper and pencil, desktop and board to paper academic activities.
(Doc. 61 at 7; Doc. 61-4 at 1-2, 4-5). And he opines that S.P. will need “6 hour
per day, five days per week of one-to-one... treatment .. . to fully develop he
academic skills to her oral language skills and abilities.” (61-4 at 4; Doc. 61 a
7-8; Doc. 61-3 J 17, 23, 35, 36). Those one-to-one services would “likely” hav
a duration of “6 months, with a re-evaluation . .. and then perhaps another 4-
months of... interventions, with post treatment testing at the end to facilitat
transition to a proper school environment.” (Doc. 61-4 at 4-5). He states tha
if at the end of “the 12 month intensive, transdisciplinary team interventio1
[S.P.] is still in need of ongoing supports . . . then she will likely need placemen
in a small-class, private school environment.” (Jd.).
And Dr. Conway recommends that S.P. “receive ongoing [occupation
therapy] and speech-language therapy on a daily basis for a minimum of 20-3
minutes.” (Id.) He estimates that one year of services would cost □□□□
$168,000, plus an additional $5,000 for pre-treatment testing and $3,500 fo
mid-point testing. (/d.). Other costs that he estimates include $20,000 a yea
in private school tuition and $10,000 a year for weekly occupational therapy an
speech-language therapy services until S.P. graduates from high school. Ud. a
5-6).
A. Dr. Conway is Qualified to Provide Opinion Testimony
As an initial matter, contrary to the Board’s argument, Dr. Conway’
experience, training, and education qualify him to testify to the accommodation
that S.P. requires to catch up with her peer group and to participate in publi
or private school. (Doc. 53 at 3 (citing Fed. R. Civ. P. 37, Fed. R. Evid. 702
Daubert, 509 U.S. at 597)). “Experts may be qualified in various ways,
including by “knowledge, skill, experience, training, or education.” Frazier, 38'
F.3d at 1260 (emphasis omitted) (quoting Fed. R. Evid. 702).
From 1989 until 2008, Dr. Conway “completed supervised pre-doctora
and post-doctoral training in the diagnosis and treatment o
[nJeurodevelopmental [dJisorders in children and adults at The Morris Cente
[(TMC)].” (oc. 61-4 at 1, 2). Dr. Conway received his bachelor’s degree i
psychology, and he holds a Ph.D. in clinical psychology with a concentration i
neuropsychology. (Doc. 61-2 at 1). After completing his Ph.D., he completed
post-doctoral fellowship at the VAMC3-Brain Rehabilitation Research Center «
Excellence. (/d.).
Since 2008, Dr. Conway has owned or managed TMC clinics in □□□□□
Florida; Ponte Vedra Beach, Florida; Birmingham, Alabama; Port of Spair
Trinidad and Tobago, West Indies; and NOW!, an EdTech company. (Doc. 61-
at 1-2). Also, since 2008, he has been training and directing teams of healthcar
professionals (occupational therapy, speech-language therapy, clinics
psychology/neuropsychology) and educators in the transdisciplinary assessmen
and treatment of neurodevelopmental disorders. (Doc. 61-2 at 1). And he ha
co-authored numerous publications, (see id. at 7-10; Doc. 61-4 at 1-2), an
provided training courses and workshops to professionals, (see Doc. 61-2 at 11.
12). Dr. Conway is “professionally trained and published in lifespan
neuropsychology, neurorehabilitation, neuroimaging ([single-photon emissio1
computed tomography], [functional magnetic resonance imaging], and [diffusio1
tensor imaging]) and neurodevelopmental transdisciplinary team assessmen
and team treatment of [n]eurodevelopmental [d]isorders for children, teenager
and adults.” (Doc. 61-3 {| 1; see also Doc. 61-4 at 1-2).
Nonetheless, the Board claims that because Dr. Conway is not licensed i1
8 Veterans Affairs Medical Center.
Florida or another state, he is unqualified to serve as an expert in □□□□□□□□□□
school psychology, occupational therapy, speech-language pathology, or K-1
educational needs. (Doc. 53 at 8-9). Here, the Board points to the lack
information in Dr. Conway’s expert report or curriculum vitae that he is
licensed psychologist, school psychologist, licensed occupational therapist, o
licensed speech-language pathologist in Florida (or any other state). Ud. at 9
12 (citing §§ 490.003(7), 490.003(8), 490.005, 490.006, 490.013, Fla. Stat.)). Alsc
the Board asserts that he is unqualified because he has never taught in a K-1
classroom in Florida and he is not a licensed educator in Florida. (Id. at 12).
To the extent that the Board argues that Dr. Conway is unqualifie:
because he is unlicensed in Florida, it has not stated how “this renders [Dr
Conway] unqualified in this case.” State Farm Mut. Auto. Ins. v. Complete Car
Cirs., LLC, No. 6:20-CV-1240-WWB-EJK, 2022 WL 16844858, at *3 (M.D. Fla
Sept. 21, 2022) (citing Balthazar Mgmt., LLC v. Beale St. Blues Co., No. 17-cv
81214, 2018 WL 6928698, at *4 (S.D. Fla. Oct. 30, 2018)). Moreover, the Boar
fails to explain its arguments that he is not licensed as a speech-languag
pathologist in any jurisdiction or as an educator in Florida. See State Farm Mut
Auto. Ins., 2022 WL 16844858, at *3. This argument goes to the weight that □
trier of fact might give the testimony, but it does not preclude admissibility. Id
(citing McDowell v. Brown, 392 F.3d 1283, 1297 (11th Cir. 2004), and □□□□□□□□□
v. Blair Corp., No. 3:09-CV-8438, 2012 WL 2464000, at *9 (M.D. Ala. June 2’
2012)).
Finally, the Board argues that Dr. Conway is unqualified because h
“never personally treated, evaluated, or assessed S.P. in a clinical or schox
setting.” (Doc. 53 at 12). The Board fails to provide any basis for this □□□□□□□□□
which Dr. Conway expressly rebuts in his declaration. (Doc. 61-3 at 6—7). Th
Parneses submit that Dr. Conway has evaluated S.P., reviewed her medical an
school records (including those that the Board produced), and has spoken wit
S.P. and her parents on “numerous occasions regarding [her] education.” (Ic
{ 14, 17, 23, 35, 36; Doc. 61 at 7-8 & n.2). Indeed, his expert report (Doc. 61
4) “was based on evaluation, information, and the status of [S.P.] at that time.
(Doc. 61-3 35, 36).4 His “conclusions and recommendations for her treatmen
plan will likely be modified if she is to enroll in [his] program.” (Id. {{ 36). Thus
he took “the appropriate steps to evaluate” S.P. (Id. § 35). Accordingly, Dy
Conway is sufficiently qualified to opine as an expert in this case. (Doc. 61 a
4),
B. Dr. Conway is Not Offering a Causation Opinion
Next, the Board argues that Dr. Conway’s report is limited to S.P.’
4 The Parneses state that it was unnecessary for Dr. Conway to perform anothe
assessment or evaluation of S.P. because the Board does not dispute that she suffer
from disabilities. (Doc. 61 at 8). Thus, Dr. Conway’s attention was focused on th
remediation of S.P.’s education, brain development, and learning. (Id.).
present treatment, education, and schooling needs, and thus the Court shoul
exclude his “causation” opinions. (Doc. 53 at 3, 7; Doc. 61 at 2). The Boar
submits that the “causation” opinions that Dr. Conway will offer are: (1) th
alleged acts or omissions on the part of the Board, (2) the adequacy an
appropriateness of any services and supports the Board provided S.P., and (3
whether the Board damaged or harmed S.P. (Doc. 53 at 3, 7; Doc. 61 at 2). Th
Parneses explain that Dr. Conway’s report does not opine as to “causation
because he is not going to offer a “causation” opinion. (Doc. 61 at 2~3). Thus
Dr. Conway will not be permitted to provide a “causation” opinion.
C. Reliability of Dr. Conway’s Methodology
Next, the Board argues that Dr. Conway’s proposed opinions are not basec
on a reliable methodology and are simply ipse dixit that will not assist the jury
(Doc. 53 at 3). The Board says the Parneses failed to demonstrate that hi
proposed testimony is scientifically valid because his expert report does no
address the four factors identified in Federal Rule of Evidence 702. (Id. at 13)
The Court is not persuaded.
First, Dr. Conway’s opinions will help the jury to understand the parties
positions and the remedies that the parties believe are appropriate o1
inappropriate. (Doc. 61 at 12). Unlike the Board’s citation to Clarke, Dr
Conway’s opinion will assist the jury. (/d. at 18-19 (citing Clarke v. Schofield
632 F. Supp. 2d 1350, 1368-70 (M.D. Ga. 2009))). In Clarke, the court precludec
a doctor from opining as an expert on a decedent’s cause of death. 632 F. Sup]
2d at 1368-70. The court found that the doctor, an emergency room □□□□□□□□□
would clearly qualify “as an expert in a medical malpractice case against
physician practicing family medicine or emergency medicine, but [the] case [dic
not involve standard of care questions or questions about the diagnosis o
treatment of (DVT) [deep venous thrombosis] or (PE) [pulmonary emboli].” Jc
at 1357. Thus, the doctor was not allowed to opine as an expert because h
would be “testifying . . . about questions that go beyond the scope of his regula
medical practice.” Id. While the doctor may have permissibly opined “in generc
about diagnosing and treating DVT and PE,” he could not opine as an expert “i
determining the location of a DVT or the cause or etiology of a DVT ina specifi
case.” Id. The doctor did “not treat dead patients” and he could not “perforn
the standard clinical examination that he uses for live patients to form opinion
about a corpse.” Jd. at 1358.
Here, unlike in Clarke, Dr. Conway’s opinions are not so speculative (o
outside the bounds of what he does) that his opinions will fail to assist the jury
And while the Board argues that Dr. Conway’s lack of licensure means he wil
not assist the jury, as previously discussed “lack of board-certification [or ;
license] goes to weight, not admissibility.” State Farm Mut. Auto. Ins., 2022 WI
16844858, at *3 (citing McDowell, 392 F.3d at 1297 and Ledbetter, 2012 WI
2464000, at *9). Thus, Dr. Conway’s opinions will assist the jury.
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Second, Dr. Conway’s opinions are based on sufficient facts and data. Th
records that Dr. Conway reviewed were produced to the Board and consisted c
S.P.’s school records, medical records, and evaluations. (Doc. 61 at 8 & n.2; Doc
61-3 {| 17). Moreover, Dr. Conway interviewed S.P., her parents, and famil
members. (Doc. 53 at 15; Doc. 61 at 8). Unlike in Trasylol, which the Boar
cites in support of its argument that “good grounds” do not support Dr. Conway’
opinion, Dr. Conway submits that he has reviewed S.P.’s medical records. (Doc
53 at 15 (citing In re Trasylol Prod. Liab. Litig., No. 08-MD-01928, 2013 WI
1080552, at *2, *8 (S.D. Fla. Mar. 14, 2013) (finding physician’s opinion tha
decedent died from exposure to pharmaceutical during a surgery was not □□□□
on a reliable methodology where physician did not review records predatin;
hospitalization for surgery and did not review complete records o
hospitalization))). Dr. Conway “review[ed] all of [S.P.]’s school records coverin;
the past six to seven years,...reviewed all evaluations o
disabilities[,] . . . [and] reviewed [S.P.’s] IEP plans, notes and records from he:
schooling in the Orange County School System and subsequent institution:
where her[] parent[s] sought to obtain remediation services.” (Doc. 61-3 § 17).
Third and fourth, Dr. Conway’s proposed opinions as to th
accommodations that S.P. requires to catch up with her peer group and t
participate in public or private school are reliable. The Parneses state that Dr
Conway used peer reviewed and accepted principles to evaluate S.P.’s schoo
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records and medical records. (Doc. 61 at 10 (citing Doc. 61-4 at 1-4 and Doc. 61
3 at 5-10)). His opinion connects his experience and secondary sources to S.P.’
school and medical records such that it is the product of reliable principles an
is based on reliable methodology. (See, e.g., Doc. 61-4 at 2-3). Therefore, D1
Conway’s proposed opinion as to the accommodations that S.P. requires to □□□□
up with her peer group and to participate in public or private school are reliable
However, Dr. Conway’s opinions about the costs of private schooling an:
healthcare are unreliable. (Doc. 53 at 16). As the Board notes, his compan:
may charge certain rates, but there is insufficient information in his exper
report to support his testimony as an expert regarding the costs of healthcare
educational services, or private school tuition in the community at large. (Id.).
Like in Tundidor, Dr. Conway does not provide support for his calculation of th
costs of S.P.’s potential treatment. (Id. (citing Tundidor v. Carnival Corp., 19
CV-25137, 2023 WL 2388499, at *4 (S.D. Fla. Jan. 10, 2023))). He provides th:
following estimates for healthcare costs: an initial $5,000 flat fee for ;
transdisciplinary team assessment that is done pre-treatment to guide o
develop the treatment plan;* $14,000 per month for “essential treatmen
5 Here, the Board lumps in Dr. Conway’s opinion about S.P.’s educational need.
“until she graduates from high school” in its discussion of the reliability of his cos
opinion. However, that opinion is more appropriately grouped with the prio
discussion about his opinion on the accommodations that S.P. needs.
6 Transdisciplinary team assessments comprise “comprehensive [occupationa
eh [speech-language therapy] and [p]sychoeducational testing.” (Doc. 61-4 a
12
services at [TMC]” that will “likely . . . span up to one year of services (~
168,000.00);? and $3,500 for mid-point testing at six months.” (Doc. 61-4 at 4).
While these costs may be what TMC charges for healthcare services, no basi
for them has been provided. (See Doc. 61-4 at 4). Dr. Conway’s report does nc
set forth the cost of individual services or what is included in, for example, th
$14,000-a-month figure. Likewise, there is no cost estimate for the onlin
program (NOW!) that S.P. is enrolled in; it is not clear whether that program i
included in the $14,000 monthly figure or if it is a separate cost.
Moreover, Dr. Conway does not submit that he has testified as an exper
witness regarding medical coding or the reasonableness of medical billing
Compare (Doc. 61-4 at 6), with Serrano v. Fam. Dollar Stores of Fla., LLC, Nc
19-81257-CIV, 2021 WL 3036673 (S.D. Fla. June 9, 2021) (denying motion t
exclude physician’s expert opinion because, inter alia, he was a certified medica
coding expert, he testified as an expert in several cases about medical codin;
and reasonableness of medical billing, and he compared plaintiffs medica
billing to Medicare rates and to “several authoritative sources”). And he doe:
not submit that his opinion on S.P.’s medical billing was the result of considerin;
7 $168,000 = 14,000 x 12
8 Dr. Conway attests that while the costs may seem high, “the standard rate fo
[speech-language therapy] and [occupational therapy] services [is] typically $150/hou
and thus a true ‘Cadillac’ level of services . . . would cost $234,000 per year.” (Doc. 61
4 at 4). Dr. Conway’s report indicates that end-of-treatment testing may be a separat
cost, but he does not provide any cost attributable to that testing. (Id.).
13
authoritative sources on the subject. See id. Nor does he explain how h
determined “typical” rates in the area, and there is no support fo
this determination other than Dr. Conway’s own report.
Likewise, Dr. Conway’s opinion on the cost of private schooling i
unreliable. He states that “[t]he cost[s] for such private school services are likel
. . . $20,000 per year in school tuition and $10,000 per school year fo
[occupational therapy] and [speech-language therapy] services weekly unti
[S.P.] graduates from high school.” (Id. at 4-5). As with Dr. Conway’s opinio.
on healthcare costs, he fails to provide “any explanation of the basis, facts, o
data considered in reaching” his opinion as to S.P.’s continuing treatment □□
educational costs. And he does not cite to any other resource to support hi
opinions. As a result, his methodology is insufficiently reliable for him to offe
an opinion on the continuing treatment and educational costs in this case. Thus
Dr. Conway’s cost opinions must be excluded.
14
IV. CONCLUSION
For the reasons explained above, it is ORDERED that the Board’
Daubert motion (Doc. 53) is GRANTED in part and DENIED in part. Thi
Court excludes Dr. Conway’s opinions as to causation, healthcare costs, anc
schooling costs. The motion to exclude is otherwise denied.
DONE and ORDERED in Orlando, F lorida, on September uF, 2024.
OHNA ON II
United States District Judge
Copies furnished to:
Counsel of Record
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