United States District Court, D. Nebraska
LISSETTE LARIOS ROOHBAKHSH, as personal representative of the Estate of Fatima Lissette Larios and on behalf of next of kin; and NELSON LARIOS, as next of kin; Plaintiffs,
BOARD OF TRUSTEES OF THE NEBRASKA STATE COLLEGES, and CHADRON STATE COLLEGE, Defendants.
MEMORANDUM AND ORDER
F. BATAILLON SENIOR UNITED STATES DISTRICT JUDGE
matter is before the Court on the parties' motions to
exclude testimony of experts under Daubert v. Merrell Dow
Pharms., 509 U.S. 579, 589 (1993), Filing Nos. 125, 128,
134, 137, and 144. This is an action for discrimination on
the basis of sex in a federally funded educational program
brought pursuant to Title IX of the Education Amendments of
1972, 20 U.S.C. § 1681 et seq. ("Title
Board of Trustees of the Nebraska State Colleges, and Chadron
State College (collectively, “Chadron State, ”
“the College, ” or “defendant”) move
to exclude testimony of the plaintiffs' expert witnesses
Saundra K. Schuster, J.D., Filing No. 125, and Donna Peters,
Psy.D, Filing No. 128. The plaintiffs, Lissette Larios
Roohbakhsh, as personal representative of the Estate of
Fatima Lissette Larios and next of kin, and Nelson Larios
(“plaintiffs”) move to exclude certain testimony
and opinions of defendant's expert witnesses Peter Lake,
J.D., Lisa Boesky, Ph.D., and Karl Williams, M.D.
parties respectively disclosed Saundra K. Schuster and Peter
Lake as experts on Title IX compliance and disclosed Dr.
Peters and Dr. Boesky, both psychologists, as
suicide/causation witnesses. Chadron State disclosed Dr.
Williams, M.D., a Forensic Pathologist and the Chief Medical
Examiner for Allegheny County, Pennsylvania, to testify
regarding the condition of Fatima Larios's body at the
time of post-mortem examination.
Title IX Experts
Rule of Evidence 702 governs the admissibility of expert
testimony and requires that: “(1) the evidence must be
based on scientific, technical or other specialized knowledge
that is useful to the finder of fact in deciding the ultimate
issue of fact; (2) the witness must have sufficient expertise
to assist the trier of fact; and (3) the evidence must be
reliable or trustworthy.” Kudabeck v. Kroger
Co., 338 F.3d 856, 859 (8th Cir. 2003). “The
touchstone for the admissibility of expert testimony is
whether it will assist or be helpful to the trier of
fact.” Lee v. Andersen, 616 F.3d 803, 808 (8th
Cir. 2010) (quoting McKnight ex rel. Ludwig v. Johnson
Controls, Inc., 36 F.3d 1396, 1408 (8th Cir. 1994).
Expert testimony assists the trier of fact when it provides
information beyond the common knowledge of the trier of fact.
Kudabeck, 338 F.3d at 860.
faced with a proffer of expert testimony, trial judges are
charged with the “gatekeeping” responsibility of
ensuring that all expert evidence admitted is both relevant
and reliable. Kumho Tire Co. v. Carmichael, 526 U.S.
137, 147 (1999); Daubert, 509 U.S. at 589;
United States v. Merrell, 842 F.3d 577, 582 (8th
Cir. 2016). The proponent of expert testimony bears the
burden of providing admissibility beyond a preponderance of
the evidence. Lauzon v. Senco Prods., 270 F.3d 681,
686 (8th Cir. 2001). A witness who offers expert opinions on
multiple topics may be qualified as an expert on one topic
but not others. See Wheeling Pittsburgh Steel Corp. v.
Beelman River Terminals, Inc., 254 F.3d 706, 715 (8th
Eighth Circuit, “cases are legion that, correctly,
under Daubert, call for the liberal admission of
expert testimony.” Johnson v. Mead Johnson &
Co., 754 F.3d 557, 562 (8th Cir. 2014) (citations
omitted). “As long as the expert's scientific
testimony rests upon ‘good grounds, based on what is
known' it should be tested by the adversary process with
competing expert testimony and cross-examination, rather than
excluded by the court at the outset.” Id.
(quoting Daubert, 509 U.S. at 590). An expert's
opinion should be excluded only if the “opinion is so
fundamentally unsupported that it can offer no assistance to
the jury.” Synergetics, Inc. v. Hurst, 477
F.3d 949, 956 (8th Cir. 2007).
court must be given wide latitude in determining whether an
expert's testimony is reliable. See Kumho
Tire, 526 U.S. at 152. This analysis requires that the
court make a “preliminary assessment of whether the
reasoning or methodology underlying the testimony is
scientifically valid and of whether that reasoning or
methodology . . . can be [properly] applied to the facts in
issue” Daubert, 509 U.S. at 592-93.
“When the application of a scientific
methodology is challenged as unreliable under
Daubert and the methodology itself is sufficiently
reliable, outright exclusion of the evidence is
“warranted only if the methodology ‘was so
altered by a deficient application as to skew the methodology
itself.'” United States v. Gipson, 383
F.3d 689, 697 (8th Cir. 2004) (quoting United States v.
Martinez, 3 F.3d 1191, 1198 (8th Cir. 1993) (internal
quotation marks and ellipses omitted). Generally,
deficiencies in application go to the weight of the evidence,
not its admissibility. Id. District courts are
“not to weigh or assess the correctness of competing
expert opinions.” Johnson, 754 F.3d at 562.
The jury, not the trial court, should be the one to
‘decide among the conflicting views of different
experts.'” Kumho Tire, 526 U.S. at 153.
expert cannot testify as to matters of law, and legal
conclusions are not a proper subject of expert testimony.
S. Pine Helicopters, Inc. v. Phoenix Aviation Managers,
Inc., 320 F.3d 838, 841 (8th Cir. 2003). “Matters
of law are for the trial judge, and it is the judge's job
to instruct the jury on them.” Id.; see
also Police Ret. Sys. of St. Louis v. Midwest Inv.
Advisory Serv., Inc., 940 F.2d 351, 357 (8th Cir. 1991)
(“Explaining the law is the judge's job”).
Testimony regarding the requirements of law would give the
jury the appearance that the Court is shifting the
responsibility to decide the case to the expert. See
Farmland Indus. v. Frazier-Parrott Commodities,
Inc., 871 F.2d 1402, 1409 (8th Cir. 1989).
an expert cannot offer an opinion that defendant violated a
statute. Frye v. Hamilton Cty. Hosp., No.
18-CV-3031-CJW-MAR, 2019 WL 2404330, at *4 (N.D. Iowa June 7,
2019); see also Portz v. St. Cloud State
Univ., 297 F.Supp.3d 929, 952 (D. Minn. 2018) (excluding
expert's testimony “about the legal requirements of
Title IX or about [the expert's] conclusions as to
whether [defendant] complies with Title IX”); Doe
YZ v. Shattuck-St. Mary's Sch., 214 F.Supp.3d 763,
781 (D. Minn. 2016) (holding that an expert's testimony
“may not extend to whether [defendant] or any of its
employees actually violated [the statute at issue] because
that would be an inadmissible legal conclusion”).
However, “[a]n expert does not invade the court's
authority by discoursing broadly over the entire range of the
applicable law where the opinion is focused on a specific
question of fact.” Camacho v. Nationwide Mut. Ins.
Co., 13 F.Supp.3d 1343, 1366 (N.D.Ga. 2014).
or fact testimony on industry practice or standards, however,
is often relevant and admissible. S. Pine Helicopters,
Inc., 320 F.3d at 841. Testimony about industry
standards, or policies adopted by other institutions to
comply with applicable regulations, is not generally regarded
as a legal opinion or conclusion. See
Portz, 297 F.Supp.3d at 953 (holding that expert
could testify as to the history and purposes of Title IX and
relevant industry practices or standards, but could not
testify about the legal requirements of Title IX);
Shattuck-St. Mary's Sch., 214 F.Supp.3d at 781
(permitting plaintiffs' expert to testify “as to
the existence of mandatory reporting statutes and the
policies and procedures that other schools have implemented
to comply with such statutes” but excluding testimony
about whether defendant violated the mandatory reporting
statute in question). Expert testimony regarding how schools
effectively approach Title IX discrimination can be helpful
to the jury. Doe v. Wharton Indep. Sch. Dist., No.
2:16-CV-48, 2017 WL 932935, at *2 (S.D. Tex. Mar. 9,
2017)(stating that, without testifying as to ultimate facts
or legal conclusions, educational experts can address these
standards of care for remedying the problems that Title IX
was formulated to address and allowing testimony regarding
how schools effectively approach Title IX discrimination and
how much notice is actual notice that triggers a duty to
respond); see also Doe by Watson v. Russell Cty. Sch.
Bd., 292 F.Supp.3d 690, 717-18 (W.D. Va. 2018); S.
Pine Helicopters, 320 F.3d at 841. This expertise can
help the jury determine whether a school's response is
ineffective or inadequate under the circumstances.
See Doe v. Wharton, 2017 WL 932935, at *2.
“an opinion is not objectionable just because it
embraces an ultimate issue.” Fed.R.Evid. 704(a).
However, “[o]pinions that ‘merely tell the jury
what result to reach' are not admissible.”
Lee, 616 F.3d at 809 (quoting Fed.R.Evid. 704
advisory committee's note). Determining whether a
defendant has displayed deliberate indifference to a
plaintiff's rights is distinctly the province of the
fact-finder at trial. See Doe v. St. Francis Sch.
Dist., 834 F.Supp.2d 889, 892 (E.D. Wis. 2011),
aff'd, 694 F.3d 869 (7th Cir. 2012).
a general rule, the factual basis of an expert opinion goes
to the credibility of the testimony, not the admissibility,
and it is up to the opposing party to examine the factual
basis for the opinion in cross-examination.'”
Nebraska Plastics, Inc. v. Holland Colors Americas,
Inc., 408 F.3d 410, 416 (8th Cir. 2005) (quoting
Hartley v. Dillard's, Inc., 310 F.3d 1054, 1061
(8th Cir. 2002)). However, expert testimony must be
“sufficiently tied to the facts of the case that it
will aid the jury in resolving a factual dispute.”
Concord Boat Corp. v. Brunswick Corp., 207 F.3d
1039, 1057 (8th Cir. 2000). “If a party believes that
an expert opinion has not considered all of the relevant
facts, an objection to its admission is appropriate.”
Id. at 1056 (noting a theory “should not be
admitted if it does not apply to the specific facts of the
case”). Id. at 1056. “An expert opinion
cannot sustain a jury's verdict when it ‘is not
supported by sufficient facts to validate it in the eyes of
the law, or when indisputable record facts contradict or
otherwise render the opinion unreasonable . . . .'”
Concord Boat Corp. v. Brunswick Corp., 207 F.3d at
1057 (quoting Brooke Grp. Ltd. v. Brown & Williamson
Tobacco Corp., 509 U.S. 209, 242 (1993)).
Saundra K. Schuster (Filing No. 125)
K. Schuster is the plaintiffs' Title IX expert. She will
testify regarding the standard of care for educational
institutions, Chadron State's policies and procedures
relevant to Title IX, and its response to the dating violence
allegedly experienced by Fatima Larios. Ms. Schuster's
opinions are based on her review of the evidence, including
all of the relevant depositions, and her extensive experience
training school administrators on Title IX investigations and
is an attorney and consultant. Filing No. 159-2, Ex. 2,
Expert report at 3. She has bachelor's degree in
Education and a Master's degree in Counseling/ Higher
Education from Miami University of Ohio. Id. at 4.
She has completed coursework for a Ph.D. in Organizational
Development at Ohio State University and has a J.D. from the
Moritz College of Law at Ohio State University. Id.
She is a partner at a higher education-specific law firm that
serves as legal counsel to school systems, colleges, and
universities throughout the United States. Id. at 3.
She consults with two-year and four-year public and private
educational institutions and is involved in policy
development, drafting and reviewing faculty handbooks and
employee manuals, and providing training for state and
federal compliance, including training school administrators
on Title IX compliance and how to perform Title IX
investigations. Id. She has also conducted training
for governmental and private agencies. Id. at 3. She
has published numerous articles on Title IX matters and is
founder, Board member and member of the Association of Title
IX Administrators (ATIXA), which provides training of school
administrators on Title IX compliance and investigations,
including dating violence investigations on campus.
Id. at 4. She has experience serving as general
counsel for a university, and in college administration and
teaching. She has served as an expert witness on Title IX
compliance, specifically the adequacy of a University's
Title IX investigation and response, in other cases.
Id. at 5.
opines that Chadron State failed to provide a response to
reports of dating/intimate partner violence that met the
standard of care under Title IX and failed to train personnel
consistent with industry standards on Title IX. Id.
defendant argues that Schuster's testimony improperly
invades the province of the Court and the jury by expressing
opinions on legal standards. The College challenges her
testimony about industry standards of care for colleges and
universities with respect to victims of dating violence. They
contend the facts of this case do not require the assistance
of an expert.
response, the plaintiffs argue that Shuster's opinions
meet the requirements for admissibility set forth in the
Federal Rules of Evidence and related case law. They contend
her testimony will assist the jury in understanding what a
college's obligations are with respect to investigating
and responding to potential Title IX violations. Plaintiffs
also argue Schuster's opinions are not legal conclusions
and point out she applies the facts of the case in each
opinion she holds. They contend that the fact that some of
her opinions may embrace an ultimate issue does not require
barring her testimony in its entirety. Further, they argue
that Schuster's opinions, based on her lengthy career in
the fields of higher education and Title IX training,
delineate the proper standards of care for schools.
Court finds that Shuster's opinions on whether Chadron
State's conduct amounted to deliberate indifference is a
question for the jury to determine and must be excluded. The
parameters of deliberate indifference is a question of law
and a matter for instruction by the Court. However, the Court
finds Schuster is qualified to testify as an expert on
industry standards for Title IX training, compliance,
investigations, and responses, as well as about the history
and purposes of Title IX. Schuster's opinion will help
the trier of fact determine if the College's responses
and investigation comported with industry standards, and her
opinion as to that issue is based on her education and
experience as a college administrator and trainer. The Court
will not, however, permit testimony that embraces an ultimate
the College was “deliberately indifferent” to the
risk of harm to Larios is beyond the proper role of an expert
witness and would supplant the jury's role in evaluating
and determining the facts. However, the Court will not
prohibit the experts from providing testimony that generally
discusses Title IX. If any testimony at trial impermissibly
interprets or applies Title IX, such evidence can be excluded
pursuant to proper evidentiary objections. Accordingly, the
defendant's motion will be granted in part and denied in
Peter Lake ...