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Joseph S. and Steven W., et al v. Michael F. Hogan

July 15, 2011


The opinion of the court was delivered by: Cogan, District Judge.


Before me is a motion in limine to preclude the testimony of plaintiffs' expert, Dr. Brant Fries. I deny the motion because I find that defendants' arguments go to weight rather than admissibility and because defendants have failed to show that plaintiffs violated their expert witness disclosure obligations.


In this action plaintiffs allege that hundreds of mentally disabled individuals have been discharged from psychiatric hospitals into nursing homes instead of being integrated into their communities. To support their allegations, plaintiffs seek to introduce the testimony of Dr. Fries, a statistical expert. Dr. Fries devised a sample of nursing home residents who would then be interviewed by plaintiffs' psychiatric expert to determine their ability to live in a community setting.

Defendants contend that instead of selecting a random sample and abiding by it, Dr. Fries cherry-picked nursing homes on the advice of counsel in order to focus on the facilities that were more likely to support plaintiffs' allegations. He also changed the sample midstream, they explain, when he reshuffled the original sequence and picked new residents when the selected ones were deemed too impaired.

Although the motion seeks to exclude only Dr. Fries, defendants also contend that the interview process was corrupted because Dr. Factor and plaintiffs' counsel inappropriately excluded residents who were selected as part of Dr. Fries' sample. The result, defendants conclude, was "an interview population that was overly inclusive of the most functional residents, i.e., those most likely to be deemed capable living in a less restrictive placement, and under-inclusive of residents most likely to need the higher level of care that a nursing home provides."

After taking Dr. Fries' and Dr. Factor's depositions earlier this year, defendants previously moved to strike Dr. Fries' expert report, or in the alternative, for additional discovery. Defendants claimed that they learned for the first time at the depositions that plaintiffs skipped more nursing home residents in their interviews than Dr. Fries' report admitted. This missing information, defendants contended, would have further supported their argument that plaintiffs cherry-picked the targeted residents and that the sample chosen is not representative of the entire resident population. Plaintiffs opposed the motion, arguing that defendants had had ample time for additional discovery and that, in any event, the expert report and supporting documentation did not omit any information.

At the last hearing, I denied defendants' motion without prejudice to raise the substance of the argument in a Daubert motion that they had already proposed. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). At the hearing, defendants argued that the deposition testimony of the experts left open questions, such as why certain nursing homes were skipped, but defendants could not explain why additional discovery would have supported their Daubert motion or, stated differently, how lack of discovery prejudiced them; if Dr. Fries could not explain the purported gaps, it would only support exclusion of the expert's testimony. The instant motion raises this argument anew.


Rule 702 of the Federal Rules of Evidence permits expert testimony if it will "assist the trier of fact to understand the evidence or to determine a fact in issue." In Kumho Tire Co. v. Carmichael, 526 U.S. 137, 149 (1999), the Supreme Court extended the reliability inquiry it set forth in Daubert, 509 U.S. 579, to all expert testimony. Defendants do not contend that expert testimony of a statistical expert would not be helpful, but argue that Dr. Fries' methodology was unreliable, thereby rendering his testimony inadmissible.

In a jury trial, questions of reliability often go to weight rather than admissibility. See 29 C. Wright, et. al., Federal Practice and Procedure 1d § 6264 (2011); see also Daubert, 509 U.S. at 596 ("Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence."). Some expert testimony, however, is so unreliable that it is more likely to confuse the jury than to assist it. See 29 Wright, et. al., supra, § 6264 ("The analysis often is similar to the balancing of the benefits and costs of evidence that is undertaken under Rule 403."). Such evidence, notwithstanding any probative value it may have, must be "gate-kept" or excluded by the Court. Cf. Daubert, 509 U.S. at 597 ("We recognize that, in practice, a gatekeeping role for the judge, no matter how flexible, inevitably on occasion will prevent the jury from learning of authentic insights and innovations. That, nevertheless, is the balance that is struck by Rules of Evidence designed not for the exhaustive search for cosmic understanding but for the particularized resolution of legal disputes.").

The dynamic is slightly altered in a bench trial. See 4 Weinstein's Federal Evidence § 702.02[6][b] (Mathew Bender). In making a Daubert motion, defendants are essentially asking me to gate-keep expert testimony from myself. See New York v. Solvent Chem. Co., No. 83-CV-1401, 2006 U.S. Dist. LEXIS 65595, at *3 (W.D.N.Y. Sept. 12, 2006) ("The primary purpose of the holdings in Daubert and Kumho Tire is to protect juries from being bamboozled by technical evidence of dubious merit.") (citation and quotation marks omitted). Of course if the expert testimony amounts to pure speculation, it would have no probative value and would not assist the fact finder, be it the Court or the jury. See In re Air Disaster at Lockerbie Scotland on 12-21-88, 37 F.3d 804, 824 (2d Cir. 1994). But short of that, expert testimony should be admitted so that the Court could have the benefit of live testimony and cross-examination to determine how much weight, if any, to give to the expert's conclusions. See In re Salem, 465 F.3d 767, 777 (7th Cir. 2006) ("[W]here the factfinder and the gatekeeper are the same, the court does not err in admitting the evidence subject to the ability later to exclude it or disregard it if it turns out not to meet the standard of reliability established by Rule 702."); Victoria's Secret Stores Brand Mgmt. v. Sexy Hair Concepts, LLC, No. 07 Civ. 5804, 2009 U.S. Dist. LEXIS 30458, at *17 n.3 (S.D.N.Y. Apr. 8, 2009) ("where a bench trial is in prospect, resolving Daubert questions at a pretrial stage is generally less efficient than simply hearing the evidence").

Indeed, without the risk of poisoning the jury with misleading expert testimony of limited probative value, see Daubert, 509 U.S. at 595, the Court can take in the evidence freely and separate helpful conclusions from ones that are not grounded in reliable methodology. Cf. BIC Corp. v. Far Eastern Source Corp., 23 F. App'x. 36, 39 (2d Cir. 2001) ("admission of evidence in a bench trial is rarely ground for reversal, for the trial judge is presumed to be able to exclude improper inferences from his or her own decisional analysis"); Schultz v. Butcher, 24 F.3d 626, 632 (4th Cir. 1994) ("in the context of a bench trial, evidence should not be excluded under [Rule] 403 on the ground that it is unfairly prejudicial"); Gulf States Utils. Co. v. Ecodyne Corp., 635 F.2d 517, 519 (5th Cir. 1981). It follows then that in a bench trial, the risk is with exclusion of expert testimony rather than with its admission -- it is exclusion that has the potential for an indelible impact on the record; if the appellate court disagrees that the expert's testimony was unreliable, a review for harmless error will be thwarted. See 11 Wright, et. al., supra, § 2285; see also Van Alen v. Dominick & Dominick, Inc., 560 F.2d 547, 552 (2d Cir. 1977) ("it may be the more prudent course in a bench trial to admit into evidence doubtfully admissible records, and testimony based on them").

Another practical consideration is the need for a "Daubert hearing." Where the parties raise factual issues, like they do here with respect to the data on which Dr. Fries based his opinion, an evidentiary hearing is useful and may indeed be necessary to determine whether the expert should be presented to a jury. See Humphrey v. Diamant Boart, Inc., 556 F. Supp. 2d 167, 173 n.3 (E.D.N.Y. 2008) (finding a hearing unnecessary where objections to the testimony do not raise a factual issue); 4 Weinstein's Federal Evidence ยง 702.02[6][b]. With a bench trial, the hearing is unnecessary; if I am not satisfied with the parties' examination of the witness at trial, I will have the opportunity to ask my ...

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