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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Case 5:19-cv-06196-VKD Document 127 Filed 06/21/21 Page 1 of 43 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 JAMES GOODELL, et al., Case No. 19-cv-06196-VKD Plaintiffs, 9 ORDER GRANTING IN PART AND v. 10 DENYING IN PART PLAINTIFFS' MOTION TO EXCLUDE TESTIMONY 11 SOLEDAD UNIFIED SCHOOL OF DEFENSE EXPERT DR. LAURA DISTRICT, et al., SCHREIBMAN 12 Defendants. Re: Dkt. No. 98 13 14 Plaintiffs James Goodell, Heather Goodell and their minor child, C.G.,1 sue for alleged 15 civil rights violations and disability discrimination. The Amended Complaint, which is the 16 operative pleading, asserts claims under 42 U.S.C. § 1983, the Americans with Disabilities Act of 17 1990, 42 U.S.C. § 12101, et seq., and the Rehabilitation Act of 1973, 29 U.S.C. § 794, as well as United States District Court District United States Northern District of California District Northern 18 several state law claims for relief. Dkt. No. 40. C.G. has autism spectrum disorder (“ASD”). 19 Plaintiffs’ claims arise from abuse of C.G., allegedly perpetrated by defendant Jaime Notheis, who 20 was one of C.G.’s teachers. The Soledad Unified School District (“District”) and Jaime Calderon, 21 a principal employed by the District, are also defendants.2 22 Plaintiffs now move to exclude the testimony of defense expert Dr. Laura Schreibman. 23 The District opposes the motion.3 Upon consideration of the moving and responding papers, as 24 1 25 Mr. Goodell is also C.G.’s guardian ad litem. Dkt. No. 10. 2 26 In this order, the District and Mr. Calderon are referred to collectively as the “District.” 3 27 During a hearing on a prior discovery dispute, the Court was told that Mr. Notheis, who is represented by separate counsel, “joined” in the District’s expert disclosures. Dkt. No. 79. 28 Although the ECF docket indicates that Mr. Notheis received notice of plaintiffs’ present motion, he has not filed any response, and the time for doing so has passed. Counsel for Mr. Notheis Case 5:19-cv-06196-VKD Document 127 Filed 06/21/21 Page 2 of 43 1 well as the arguments presented at the June 15, 2021 hearing, the Court grants plaintiffs’ motion in 2 part and denies it in part.4 3 I. BACKGROUND 4 Dr. Schreibman is one of three experts disclosed by the District to rebut the opinions of 5 plaintiffs’ expert, Dr. Helena Huckabee, regarding the nature and scope of the impact (if any) the 6 alleged abuse has had on C.G. Dr. Schreibman is a psychologist who specializes in the field of 7 autism. See Dkt. No. 98-3 at ECF 33-79. The other two experts are Dr. Richard J. Shaw, a child 8 psychiatrist, and Dr. Pamela Mills, an education specialist. In discovery, the District produced a 9 Rule 26(a)(2) report (“Schreibman report”), ostensibly authored by Dr. Schreibman and jointly 10 signed by Drs. Schreibman, Shaw and Mills, to rebut Dr. Huckabee’s opinions and conclusions. 11 Although Dr. Huckabee’s report is not before the Court, she apparently will testify that the alleged 12 abuse had a significant impact on C.G. She opines that some of his behavioral and functional 13 issues are due to post-traumatic stress disorder (“PTSD”) resulting from the alleged abuse, and 14 that C.G. consequently requires certain psychotherapy and other services. 15 The Schreibman report disputes Dr. Huckabee’s diagnosis of PTSD, as well as her 16 conclusions attributing C.G.’s issues to that condition, and questions the need for Dr. Huckabee’s 17 recommended therapy and services. The Schreibman report reflects opinions to the effect that United States District Court District United States Northern District of California District Northern 18 C.G.’s behavioral and other issues are not due to PTSD, and are entirely consistent with a 19 diagnosis of ASD. As such, the report concludes that C.G.’s educational and other services that 20 are already in place should be sufficient to support and treat a child with ASD, with no need for 21 any increased services or treatment due to PTSD or the alleged abuse. 22 The Schreibman report bears Dr. Schreibman’s letterhead and states that the report was 23 “prepared in collaboration with” Drs. Shaw and Mills. Dkt. No. 98-2 at ECF 1. Beneath Dr. 24 Schreibman’s signature appears the following statement: 25 26 appeared at the June 15, 2021 motion hearing, but did not present any oral argument. 27 4 All parties have expressly consented that all proceedings in this matter may be heard and finally 28 adjudicated by a magistrate judge. 28 U.S.C. § 636(c); Fed. R. Civ. P. 73; Dkt. Nos. 19, 26, 32. 2 Case 5:19-cv-06196-VKD Document 127 Filed 06/21/21 Page 3 of 43 As noted previously, this report was prepared in collaboration with 1 Richard J. Shaw, M.D. and Pamela Mills, Ed. D., Ph.D. In signing below, each affirms that they have reviewed and analyzed the same 2 facts, data, and material relating to this case, as referenced above, and have reached the same conclusions and opinions expressed in 3 this report. Accordingly, both are prepared to testify as to the conclusions and opinions stated in this report, as well as bases for 4 those conclusions and opinions. 5 Id. at ECF 32. The signatures of Drs. Shaw and Mills appear under this statement. Id. 6 In discovery, plaintiffs previously moved to strike the proposed testimony of Drs. 7 Schreibman, Shaw and Mills. Plaintiffs argued that the proposed testimony was cumulative 8 because the Schreibman report suggested that all three experts would offer the same opinions 9 based on review and analysis of the same materials. Chief among plaintiffs’ stated concerns, 10 however, was that the Schreibman report was deficient because it failed to describe each expert’s 11 proposed testimony and the bases and reasons for them as required by Rule 26(a)(2). Noting that 12 Drs. Schreibman, Shaw and Mills each have different backgrounds and expertise, the District 13 asserted that it did not intend to present cumulative testimony, but rather than produce a separate 14 report for each expert, the District suggested that plaintiffs could take depositions to ascertain each 15 expert’s specific testimony, the bases for their respective opinions, and the extent to which each 16 expert collaborated with, and relied upon the opinions of, the other two. See Dkt. No. 77 at 11; 17 Dkt. No. 79. Notwithstanding that it chose to produce a single report for all three experts, the United States District Court District United States Northern District of California District Northern 18 District planned to have all three experts testify at trial. However, if only one of the experts were 19 to testify, the District said it would be Dr. Schreibman. Dkt. No. 79. 20 The Court agreed that the testimony as presented in the Schreibman report was cumulative 21 and that the report did not meet the disclosure requirements of Rule 26(a)(2). The District was 22 limited to calling Dr. Schreibman to testify at trial, subject to the Court’s ruling on any pretrial 23 motions challenging her qualifications or testimony. Dkt. No. 80. Additionally, the District was 24 ordered to serve an amended report that made “clear the nature and extent of Dr. Schreibman’s 25 reliance, if any, on information or opinion provided by another expert.” Id. To permit time for the 26 amended report and related discovery, the Court extended the March 25, 2021 expert discovery 27 cutoff to April 30, 2021 for depositions relating to the expert testimony disclosures of Drs. 28 3 Case 5:19-cv-06196-VKD Document 127 Filed 06/21/21 Page 4 of 43 1 Huckabee and Schreibman. Id.5 That deadline was further extended, pursuant to the parties’ 2 stipulation, to May 30, 2021. Dkt. No. 95. 3 On March 30, 2021, the District served another version of the Schreibman report, which 4 now bears only Dr. Schreibman’s signature and also contains an “Addendum,” in which Dr. 5 Schreibman describes the nature and purpose of her collaboration with Drs. Shaw and Mills: 6 For the preparation of this rebuttal report, I consulted with Richard J. Shaw, M.D., a child psychiatrist, and Pamela Mills, Ed.D., Ph.D. 7 an educational specialist. Given the nature of the issues and recommendations brought up in the Huckabee report, I felt it 8 prudent to ensure that my opinions and conclusions would be confirmed by relevant experts in certain areas. These individuals 9 also provided input relating to the clarity and organization of my written report. 10 Specifically, I particularly sought Dr. Shaw’s opinions regarding 11 psychiatric consultation as recommended by Dr. Huckabee. I am not a child psychiatrist and wanted to ensure my opinions 12 represented best and accepted practices for psychiatric consultation including the nature of the evaluation, symptoms requiring 13 additional evaluation, and the typical schedule of evaluations for children with ASD. Dr. Shaw provided helpful input here. I also 14 consulted Dr. Shaw regarding incidence of aggression in children with ASD to make sure my opinions were consistent with his. Dr. 15 Shaw provided me with a research article by Kanne and Mazurek which I reviewed and found consistent with my knowledge in the 16 area. Dr. Shaw provided me with the UCLA PTSD Reaction Index forms for children and adolescents, which I reviewed.
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