Opinion
Civ. No. H-98-3883.
December 1999.
MEMORANDUM AND ORDER
This civil action is scheduled for a jury trial commencing on Monday, December 13, 1999. The background facts pertaining to this litigation were set forth in some detail in the Court's Memorandum and Order of September 20, 1999, which denied defendant's motion for summary judgment as to Count I of the complaint and granted defendant's motion for summary judgment as to Count II of the complaint.
Pursuant to discussions at the pretrial conference, a Pretrial Order was entered on October 8, 1999. A Supplemental Pretrial Order was entered on October 25, 1999, and an Amended Supplemental Pretrial Order was entered on November 10, 1999.
Now pending before the Court are a motion in limine filed by defendant and a motion in limine filed by plaintiff. Memoranda and exhibits have been submitted by the parties in support of and in opposition to defendant's motion in limine. Defendant has not opposed plaintiff's motion in limine, which will accordingly be granted.
Following its review of the pleadings, memoranda and exhibits, the Court has concluded that no hearing is necessary for a ruling on defendant's motion in limine. See Local Rule 105.6. For the reasons stated herein, defendant's motion in limine will be granted.
I Plaintiff's Motion In Limine
In her motion in limine, plaintiff von Gunten has asked the Court to exclude defendant's proposed Exhibits Nos. 4, 7, 10, 11 and 13, to exclude testimonial evidence pertaining to plaintiff's job performance after December 13, 1996, and to exclude all reference to plaintiff's prior employment. Defendant has not opposed this motion.
Under the circumstances, plaintiff's motion in limine will be granted. Defendant will be precluded at the trial from offering its proposed Exhibits Nos. 4, 7, 10, 11 and 13. Defendant will further be precluded at the trial from offering any testimonial evidence of plaintiff's job performance after December 13, 1996 and from making any reference in the trial to plaintiff's prior employment.
II Defendant's Motion In Limine
Listed in the Pretrial Order as one of plaintiff's witnesses is Dorothy Drechsler Burke ("Burke"). The Pretrial Order indicates that neither party intends to call an expert, but plaintiff has stated therein that her treating medical caretakers may offer expert opinions relating to her treatment.
By way of its motion in limine, defendant asks the Court to exclude any testimony to be presented at the trial by Burke. Defendant argues that under Rule 702, F.R.E., Burke's testimony is not admissible as an expert and that under Rule 701, F.R.E., Burke's testimony is not admissible as a lay witness.
Beginning in December of 1996, plaintiff began receiving acupuncture treatments from Burke for pains and muscle spasms which she was experiencing in her back, hip and upper torso. Burke is a licensed acupuncturist in the State of Maryland and a licensed nurse in the States of Maryland and Pennsylvania. Between December of 1996 and May of 1999, Burke treated plaintiff with acupuncture approximately twice a month in one hour long sessions. According to Burke, plaintiff's discomfort was caused by stress endured by plaintiff during her job at MDE. Burke opined that this job stress caused plaintiff to suffer emotional and physical distress.
Burke's treatments included acupuncture, herbs and moxibustion.
The deposition of Burke was taken during discovery in this case. In her deposition testimony, Burke stated that she had determined the cause of von Gunten's emotional and physical distress based upon von Gunten's own opinion as to the cause, stating that "I [Burke] try very hard to believe what my patients say unless they say something, and I really believe [von Gunten]." Burke used traditional Chinese medicinal techniques, which included listening to von Gunten's interpretation of her own life and perceiving from that interpretation von Gunten's "energy shifts," in order to determine the cause of her emotional and physical distress. Burke also indicated that it was difficult for her to state whether factors other than von Gunten's job-related stress were the cause of her distress because:
cause is not always something to get into in Chinese medicine. It's much more about what disrupts the energy and the major disruption at this course of her life is [job-related stress] and that is all the pieces that make up who she is are not necessarily cause and effect. Chinese medicine does not get into cause and effect conversation that much. So that makes it hard for me to answer this kind of a question.
Tr. 146.
(a) Rule 702
Although plaintiff has not listed Burke in the Pretrial Order as an expert witness to be called at the trial, plaintiff contends that Burke is qualified to testify as to her treatment of plaintiff and to render an expert opinion concerning the cause of plaintiff's emotional and physical distress. Defendant's motion in limine does not seek to exclude Burke's testimony regarding her treatment of plaintiff. Rather, defendant contends that Burke may not, under Rule 702, render an expert opinion concerning the cause of plaintiff's emotional and physical distress because Burke cannot reliably determine such cause. According to defendant, the opinion on causation to be given by Burke at the trial does not satisfy the requirements of Rule 702 and Daubert v. Merrell-Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
A serious question exists as to whether plaintiff would be entitled to call Burke as an expert witness. She was not listed as such in the Pretrial Order. Local Rule 106.2 requires a party to list the name and specialty of an expert which the party proposes to call as a witness. Plaintiff specifically stated that she did not intend to call an expert. It has been held that failure to list a potential expert witness in the Pretrial Order may result in a ruling that the proposed testimony of the witness is inadmissible. MCI Telecommunications Corp. v. Wanzer, 897 F.2d 703, 706 (4th Cir. 1990).
Daubert requires that, when considering the admissibility of an expert opinion under Rule 702, a federal judge must exercise a "gatekeeping responsibility" to insure that admitted scientific testimony is both relevant and reliable. 509 U.S. at 589, n. 7, 600. Before the Court can consider an expert opinion of the sort relied upon here by plaintiffs, threshold standards for the admissibility of such evidence must be met. As Judge Young noted in Marder v. G.D. Searle Co., 630 F. Supp. 1087, 1089 (D. Md. 1986), aff'd, 814 F.2d 655 (4th Cir. 1987) (Table), the Fourth Circuit has cautioned that special care should be taken when assessing the sufficiency of causation evidence in a case where such evidence is circumstantial.
When asked if she had an opinion as to the cause of the conditions for which she had treated plaintiff, Burke stated: "I think it's as she stated. It's emotional stress due to her job . . . It's what she says. I also believe her. I try very hard to believe what my patients say . . . and I really believe her." In other words, Burke did no more than adopt as her own opinion plaintiff's belief that job stress had caused her pains and muscle spasms. Burke gave no independent opinion reached as a result of her own professional expertise. In the absence of her own independent opinion as to the issue of causation based on her own specialized knowledge, Burke's testimony is inadmissible under Rule 702 and Daubert for lack of reliability.
Indeed, Burke indicated in her deposition testimony that her specialized knowledge as an acupuncturist who relied on traditional Chinese medicine did not qualify her to give an opinion on the issue of causation. As she testified, cause and effect is not something which Chinese medicine gets into. Since Chinese medicine is much more concerned with "all the pieces" that make up who the patient is, it "does not get into cause and effect conversation that much." Burke admitted that other factors caused plaintiff's stress but found "it hard" to answer the question whether the stress encountered by plaintiff at her job was the proximate cause of her emotional injury. The failure of an expert to address alternative causes has been held to constitute an adequate ground for excluding the testimony of that expert. Claar v. Burlington Northern R.Co., 29 F.3d 499, 502 (9th Cir. 1994);see also Reiff v. Convergent Technologies, 957 F. Supp. 573, 583 (D. N.J. 1997) (excluding expert testimony where the expert ignored or was unable to satisfactorily discount alternative causes and did little if anything to rule them out) (quoting Diaz v. Johnson Matthey, Inc., 893 F. Supp. 358, 360 (D. N.J. 1995)).
On the record here, this Court concludes that Burke's testimony on the issue of causation will not aid the jury to understand facts at issue because it is not reliable. See Daubert, 509 U.S. at 592. As the Court of Appeals of Maryland noted in Wilhelm v. State Traffic Comm., 230 Md. 91, 92 (1962), a question involving the cause of an emotional disturbance in a person sufficient to evoke, subconsciously, grossly exaggerated symptoms is "an intricate and complex one, peculiarly appropriate for science to answer." Burke's training and experience as an acupuncturist and her reliance on traditional Chinese medicinal techniques did not qualify her to render the opinion that plaintiff's emotional and physical distress was caused by the sexual harassment which she had experienced. Burke is not a trained therapist or psychologist.
The reasoning and methodology underlying Burke's proffered opinion is not reliable because it is not supported by adequate validation rendering it trustworthy. See Daubert at 590, n. 9. An expert opinion not based on firsthand knowledge or observation must have "a reliable basis in the knowledge and experience of [her] discipline." Daubert, 509 U.S. at 492. Burke's discipline provided no reliable basis for her to present to the jury an opinion on the issue of causation. For these reasons, Burke's testimony is not admissible under Rule 702.
(b) Rule 701
In opposing defendant's motion, plaintiff argues that in any event, Burke may render a lay witness opinion on the cause of plaintiff's emotional and physical distress pursuant to Rule 701. According to plaintiff, Burke's lay opinion is based upon her many in-depth and intimate conversations with plaintiff during acupuncture sessions. Plaintiff contends that Burke's opinion is therefore adequately supported by fact and rationally based upon Burke's perceptions of the plaintiff.
While plaintiff has noted that, as a licensed acupuncturist and registered nurse, Burke was in a position to perceive plaintiff's symptoms and thereby determine the cause for them, these facts alone are insufficient to satisfy the requirements of Rule 701. Rule 701(a) requires that lay opinion testimony be based on the firsthand knowledge of the witness. MCI Telecommunications Corp. v. Wanzer, 897 F.2d 703, 706 (4th Cir. 1990). As a result of the acupuncture sessions, Burke possessed firsthand knowledge only of plaintiff's symptoms. She did not have the necessary level of knowledge concerning the cause of the symptoms. Burke was never present with plaintiff during the alleged harassment which occurred at work, and Burke is therefore unable to satisfy the Rule 701 requirement that she have personal firsthand knowledge concerning the cause of the symptoms. Rather, Burke, in reaching her causation opinion, relied merely on the secondhand facts provided to her by plaintiff. Plaintiff's reliance on Feistermacher v. Telect, Inc., 21 F.3d 1121, 1994 WL 118046 (10th Cir. 1994) is misplaced. In that case, the court ruled that the challenged lay opinions on causation were admissible because the witnesses had observed photographs of and a reenactment of the accident. Id. at **6. No such evidence was reviewed by Burke in this case.
For these reasons, this Court has also concluded that Burke's lay opinion testimony is also inadmissible under Rule 701.
III Conclusion
For all the reasons stated, plaintiff may not call Burke either as an expert witness or as a lay witness. Nor may plaintiff present in evidence Burke's bill for medical expenses in the amount of $2,410. Of course, plaintiff herself may in her testimony describe the pain, suffering and emotional distress which she experienced during and after the alleged sexual harassment. She may not, however, present at the trial the expert or lay opinion of Burke concerning the cause of her emotional and physical distress.
Accordingly, it is this ______ day of December, 1999 by the United States District Court for the District of Maryland,
ORDERED:
1. That plaintiff's motion in limine is hereby granted;
2. That defendant is precluded from offering at the trial defendant's proposed Exhibits Nos. 4, 7, 10, 11 and 13;
3. That defendant is precluded from offering at the trial any testimonial evidence of plaintiff's job performance after December 13, 1996;
4. That defendant is precluded from making any reference at the trial to plaintiff's prior employment;
5. That defendant's motion in limine is hereby granted; and
6. That plaintiff is precluded from calling as a witness at the trial Dorothy Dreschler Burke, either as an expert witness or as a lay witness.