The opinion of the court was delivered by: VITALIANO, D.J.
This action arises under the Hague Convention on international child abduction ("Hague Convention"), as implemented by the International Child Abduction Remedies Act, 42 U.S.C. §§ 11601-11610. Petitioner Felicia Haimdas, a United Kingdom resident, and respondent Jagmohan Haimdas, a United States resident, are the biological mother and father, respectively, of two boys aged 9 and 12 (the "children"). At issue is the father's alleged wrongful retention of his children in this country.
Trial will begin tomorrow, February 23, 2010. At the February 18th final pretrial conference, the Court granted petitioner's motion in limine to strike the report and preclude the testimony of respondent's expert witness, Dr. Monty Weinstein. At respondent's request, the Court granted expedited scheduling of his motion seeking reconsideration of that ruling. Dueling memoranda of law have been served, filed and considered. The Court now adheres to its original ruling.
Familiarity with the relevant facts and law is presumed. In brief, respondent asserts that, in the event the Court finds petitioner has made out a prima facie case for the return of the children under the Hague Convention, the Court should further determine that both children prefer to remain with respondent in the United States and are old enough and mature enough for the so-called "age and maturity" defense to apply and for it to be outcome-determinative. See Hague Convention Art. 13 (if a child objects to return to his country of habitual residence after he has been wrongfully removed or retained elsewhere, and the child has attained a sufficient age and degree of maturity, it is appropriate for a court to take account of the child's objection).
In preparation to meet this defense, petitioner retained an expert, Dr. Glen Skoler, to evaluate the children and offer an expert opinion on their maturity levels. Dr. Skoler is a forensic psychologist, and is licensed as a psychologist by the District of Columbia and the states of Maryland, Pennsylvania and Virginia. After performing a psychological evaluation of the children, including the administration of a number of standardized psychological tests, Dr. Skoler submitted a report (the "Skoler Report") on October 5, 2009, stating his conclusion that the children are too immature for the Court to credit their statements about where they want to reside.
In turn, respondent retained Dr. Monty Weinstein, who is a marriage and family therapist and licensed to practice as such in the states of Florida, Georgia and North Carolina. On November 6, 2009, Dr. Weinstein submitted an expert report criticizing the Skoler Report and setting forth Dr. Weinstein's own contrary views and conclusions. Dr. Weinstein also stated in his report that he had himself administered one of the psychological tests to the children previously performed by Dr. Skoler, with conflicting results. Assuming the defense is reached at trial and Dr. Skoler is called to testify by and on behalf of the mother, the father indicated he would call Dr. Weinstein to testify. There is no dispute that the sole reason for calling either witness is to provide expert proof that might assist the Court in assessing the maturity level of the children. It is also undisputed that both witnesses claim expertise in psychology, which, both agree, is the discipline and special learning upon which their respective opinions rest.
The proponent of expert testimony bears the burden of establishing its admissibility by a preponderance of the evidence. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 593 n.10, 113 S.Ct. 2786, 2796 n.10 (1993); Fed. R. Evid. 702 advisory committee's note (2000) ("[T]he admissibility of all expert testimony is governed by the principles of [Federal Rule of Evidence] 104(a) . . . . [T]he proponent has the burden of establishing that the pertinent admissibility requirements are met by a preponderance of the evidence."). The specific conditions for admissibility of expert testimony are enumerated in Rule 702 of the Federal Rules of Evidence, 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.
Fed. R. Evid. 702. As required by this rule, a district court must make discrete fact determinations before allowing expert testimony: (1) whether the witness is qualified to be an expert "by knowledge, skill, experience, training, or education," Fed. R. Evid. 702; (2) whether the opinion is based upon reliable data and methodology; and (3) whether the expert's testimony on a particular issue will assist the trier of fact. See Nimely v. City of N.Y., 414 F.3d 381, 396-97 (2d Cir. 2005). As to sequence, a court should first decide whether the expert has sufficient qualifications to testify before proceeding to the remaining factors. See Zaremba v. Gen. Motors Corp., 360 F.3d 355, 360 (2d Cir. 2004) (where an expert witness is insufficiently qualified, an analysis of the remaining factors "seems almost superfluous").
"A court must consider the 'totality of a witness's' background when evaluating the witness's qualifications to testify as an expert." Rosco, Inc. v. Mirror Lite Co., 506 F. Supp. 2d 137, 144-45 (E.D.N.Y. 2007) (quoting 29 WRIGHT & GOLD, FED. PRAC. & PROC. § 6265, at 246 (1997)); accord Keenan v. Mine Safety Appliances Co., No. 03-CV-0710, 2006 WL 2546551, at *2 (E.D.N.Y. Aug. 31, 2006). In particular, as part of the qualification inquiry, a court must ensure that the expert will be proffering opinions on issues or subject matter within his or her area of expertise. See Stagl v. Delta Air Lines, Inc., 117 F.3d 76, 80 (2d Cir.1997). Ultimately, the determination of whether a witness possesses attributes sufficient to qualify as an expert witness in a particular case is within the Court's "broad discretion." Id. at 81.
As stated on the record at last Thursday's conference, the Court finds that Dr. Weinstein is not qualified to testify as an expert on the specific matter that he has been designated to address in this case -- an assessment of the children's maturity based on psychological evaluation. Indeed, Dr. Weinstein's report and testimony are proffered by the respondent father, first and foremost, to counter the opinions rendered by Dr. Skoler, which are based on the results of psychological tests that Dr. Skoler performed on the children and in light of the experience and expertise that he has gained during his professional career as a licensed, practicing psychologist. Although Dr. Weinstein holds licenses to practice marriage and family therapy in three states, he has never been licensed to practice psychology anywhere.*fn1
The distinction is hardly, as respondent would have it, trivial or a mere matter of semantics. In every state where Dr. Weinstein is licensed to practice marriage and family therapy, "marriage and family therapy" and "psychology" are defined by law as substantively different professions*fn2 with commensurately separate licensing requirements and procedures. See Fla. Stat. Ann. §§ 490.004-009 (2009) (psychology); Fla. Stat. Ann. §§ 491.004-006 (2009) (marriage and family therapy); O.C.G.A. §§ 43-39-6--15 (2009) (psychology); O.C.G.A. §§ 43-10A-4-10, -13, -16 (2009) (marriage and family therapy); N.C. Gen. Stat. §§ 90-270.5-22 (2009) (psychology); N.C. Gen. Stat. §§ 90.270.49-55 (2009) (marriage and family therapy). Moreover, the laws of those states expressly and uniformly prohibit Dr. Weinstein and anyone else from parlaying a license to practice marriage and family therapy into a license to practice psychology,*fn3 and the ...