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Shea v. Long Island Railroad Co.

May 21, 2009



Plaintiff sues under the Federal Employers' Liability Act, 45 U.S.C. § 51 et seq., for alleged physical and psychological injuries sustained in an accident at work.

He now moves in limine under Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S.Ct. 2786 (1993) and its progeny, and, inter alia, Federal Rule of Evidence 702, to exclude testimony of defendant's experts, psychologist Richard Vickers, Ph.D and psychiatrist and neurologist William Head, M.D. Mr. Shea seeks to preclude Dr. Vickers and Dr. Head from testifying in reliance upon or referring to the Minnesota Multiphasic Personality Inventory-2 ("MMPI-2") which Dr. Vickers administered to Mr. Shea. Shea argues that Dr. Vickers did not reliably interpret his MMPI-2 results, and therefore Dr. Head in turn should not be allowed to rely on Dr. Vickers's report on the MMPI-2. Mr. Shea also argues that certain of Dr. Vickers's opinions are inadmissible as speculation.

The admissibility of expert testimony is governed by Fed. R. Evid. 702, which provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

The Supreme Court held in Daubert that under Rule 702 "the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable." Daubert, 113 S.Ct. at 2795. The subject of an expert's testimony must have "a grounding in the methods and procedures of science" and be "more than subjective belief or unsupported speculation." Id.; see also Kumho Tire Co., Ltd. v. Carmichael, 119 S.Ct. 1167, 1176 (1999) (district court must "make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field"). The "inquiry envisioned by Rule 702 is . . . a flexible one, and the gatekeeping inquiry must be tied to the facts of a particular case." Amorgianos v. Nat'l R.R. Passenger Corp., 303 F.3d 256, 266 (2d Cir. 2002) (alteration in original) (internal quotation marks and citations omitted).

"In undertaking this flexible inquiry, the district court must focus on the principles and methodology employed by the expert, without regard to the conclusions the expert has reached or the district court's belief as to the correctness of those conclusions." Id. However, the Supreme Court recognized in Gen. Elec. Co. v. Joiner, 118 S.Ct. 512, 519 (1997):

. . . conclusions and methodology are not entirely distinct from one another. Trained experts commonly extrapolate from existing data. But nothing in either Daubert or the Federal Rules of Evidence requires a district court to 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 gap between the data and the opinion proffered. "Thus, when an expert opinion is based on data, a methodology, or studies that are simply inadequate to support the conclusions reached, Daubert and Rule 702 mandate the exclusion of that unreliable opinion testimony." Amorgianos, 303 F.3d at 266.


1. Dr. Vickers's Qualifications, Methodology and Opinions

Dr. Vickers received a Ph.D in clinical psychology from the University of Minnesota in 1973. Vickers Apr. 9, 2009 Aff. ¶ 3. He is a licensed psychologist in private practice in New York. Id. ¶¶ 1, 4. He has administered and interpreted over 3,000 MMPI tests. Id. ¶ 11.

Dr. Vickers administered the MMPI-2 to Mr. Shea on March 27, 2007 as one source of data he used "to assess Mr. S's mental state, including presence or absence of diagnosable mental disorder." Vickers Apr. 20, 2007 Rep. 1 (Wietzke Mar. 27, 2009 Aff. Ex. 1). Dr. Vickers states that the MMPI-2 is "highly reliable" and "well represented in the peer-reviewed literature, with approximately 250 MMPI-2 studies published per year" and its "Retest coefficients for 8 of the 10 basic scales surpass .80, and validity coefficients can approach 100%." Id. at 6.

Based on Mr. Shea's MMPI-2 results, Dr. Vickers opines that Shea "magnified and overreported symptoms when taking this test." Id. at 10. He also relies in part on the MMPI-2 to opine that Shea's "depressed mood and hopelessness are tied to intensified focus on perceived injury." Id. More generally, Dr. Vickers reached the "Impression that Mr. Shea exaggerated symptoms." Vickers July 23, 2007 letter to Mr. Krez 1 (Wietzke Mar. 27, 2009 Aff. Ex. 4).

Those opinions are grounded in the data from Mr. Shea's MMPI-2 results. Mr. Shea "reported that he suffers from more symptoms than 99% of [2600] individuals tested in the normative sample," and his score on the MMPI-2's scale "designed to measure vague and chronic physical problems" was "more than 99% over the average score in the community sample." Vickers Rep. 8. He received elevated scores "on scales which reflect focus on suffering" and "compulsive brooding and rumination" while "Scales which measure key components of PTSD" (Post-Traumatic Stress Disorder) were "scored near the average range." Id. at 10. Dr. Vickers shows similarities between Shea's results and model results for symptom exaggeration from Kenneth S. Pope et al., The MMPI, MMPI-2 & MMPI-A in Court: A Practical Guide for Expert Witnesses and Attorneys (American Psychological Association 1993) [hereinafter "Pope et al."], an authority relied on by both parties.

Dr. Vickers did not interpret Mr. Shea's MMPI-2 results in isolation. He reviewed Mr. Shea's medical records from his treating psychologist at New York Mental Health Services ("NYMHS"), Dr. Waldman, and conducted a clinical interview with Mr. Shea. That is in accord with the admonishment of Pope et al. regarding MMPI-2 interpretation:

But expert witnesses conducting assessments have a responsibility to conduct an adequate review of records and to inquire specifically about incidents that may affect the interpretation of test results, even if the incidents occurred long ago.

Without a structured interview and adequate review of records, it is easy to arrive at compelling but thoroughly misinformed and misleading conclusions.

Pope et al. 68 (Wietzke Apr. 17, 2009 Aff. Ex. 3).

Data from Mr. Shea's medical records and clinical interview also support Dr. Vickers's opinions. "The NYMHS treatment summary written on 5/22/03 reports that Mr. S 'fully' recovered from PTSD after four months of treatment," and "Full recovery after four months, with treatment, implies that symptoms of this disorder had a limited impact on Mr. S's life." Vickers Rep. 4. Records from Mr. Shea's second treatment at NYMHS in 2005 "again report a rapid recovery from a serious mental disorder." Id. Based on his interview with Mr. Shea, Dr. Vickers found that "His interest in losing weight and coaching his daughter's team indicate that hopelessness does not interfere with goal directed thinking, and that he remains able to experience enthusiasm and pleasure." Id. at 5.

In light of the foregoing, defendant has established that Dr. Vickers's opinions based on the MMPI-2 are relevant and (1) presented by a qualified expert, (2) based upon sufficient facts or data, and (3) the product of ...

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